Practice of international commissions of inquiry
The objective of international law is the maintenance of peace and goodwill through non-violent means. It is pertinent to note that this rapid stride in the development of international law came only after the devastating Second World War and this gave birth to the United Nations which saw, amongst others, peaceful settlement of disputes as its principle goal. Dispute settlements can be broadly be divided into two forms namely, adjudication and diplomatic settlement. The setting up of International Commissions of Inquiry falls under the purview of the second method. Now, the term International Commissions of Inquiry is both a generic term as well as a term particularly associated with the 1899 and 1907 Conventions on the Pacific Settlement of Disputes. Therefore, it is quite important to note that even before the advent of the two World Wars, the world was well-aware of the benefits of peaceful settlement of disputes and sought to achieve that through these conventions. This project will deal mostly with the latter though fact-finding inquiry commissions, especially, those established under separate conventions, for example the Commission on War Crimes in Gaza, will also be looked into. Inquiry commissions have been used mainly for two reasons:
When there is an irreconcilable difference between the parties such that they cannot come to any sort of agreement.
When protracted negotiations between the parties drag on and lead to no concrete solution.
The Forming Of The Hague Conventions: The Peace Conferences
The Hague Convention on Pacific Settlement of International Disputes did not emerge out of a vacuum. The last years of the nineteenth century were curious ones. The Peace Movements at that time had huge impacts and a rough analogy could be drawn between them and the environmental movements of today. Peace conferences, however, were nothing new and the nineteenth century had two notable examples, namely the Congress of Vienna, 1814-1815, and the Congress of Paris, set up after the Crimean War. Moreover, a number of treaties were concluded between the Latin American countries of Columbia and Peru and then Chile and Colombia in 1822.The proposal of the Russians to set up the Hague Conferences was not incongruous and has to be viewed against the backdrop of the Peace Movements at that time. The incident of the destruction of the USS Maine which in turn led to the Spanish-American War was also one of the major reasons behind the drafting of this convention particularly because there arose at that time partisan inquiry tribunals with their own version of the incident which further led to increased hostilities between the two sides. In 1899 and through further amendments in 1907, the Hague Conventions on the Pacific Settlement of International Disputes were enacted. Articles 9 to 14 of the Convention, in Title 3 of the Convention, dealt exclusively with International Commissions of Inquiry. According to the Convention, the commissions should be set up when countries differ on points of fact and have not come to any agreement by other diplomatic means. This makes it clear that inquiry commissions should only be availed of at a later stage when negotiations fail to bring the sides to any sort of compromise. Articles 10 to 13 set out the procedure as to how these commissions are formed while Article 14 clearly states that the power of the Commission is limited to establishing facts and is not in itself an arbitral award. The commission was designed to hear evidence and determine facts and then submit a report to the disputants.
The Incidents Inquired Into By The Commissions
One of the first of such incidents to be investigated by the Commission was the infamous Dogger Bank bombing of 1904 which threatened to bring the United Kingdom to war against the Russian Empire. The incident happened during the Russo-Japanese War where Russian torpedo boats fired at British fishing trawlers believing them to be hostile Japanese torpedo crafts. The magnitude of this incident was such that it almost brought Britain at war with the Russian Empire, on the side of Japan. Even in this volatile atmosphere, the leaders of both nations had the foresight to realise that the incident could very well snowball into a political crisis and thus both parties wanted the matter to be referred to the Hague Convention invoking Article 9 through Article 14 of the Convention. Before the Commission was set up, the two countries entered into negotiations on how to draft the agreement which would set up the Commission. The only problem with the drafting was the words used which as Russia alleged was a subtle pointer as to who was liable even before the Commission was set up. But finally, the problems in drafting were overcome and the Commission was set up comprising naval officers from the United Kingdom, Russia, France, Austria-Hungary and the United States of America. The Commission found that the Russian fleet had committed an egregious mistake and a sum of ₤65,000 in damages was paid by the Russians to the British. This Commission enlarged the scope of the 1899 Convention in that it did not confine itself to a mere fact-finding enterprise. By virtue of Article 2 of the Declaration of St. Petersburg which was signed by the disputants, “the commission had the right to determine the facts and the unprecedented power to decide on the controversial and volatile questions of responsibility for the incident and the degree of blame of both British and Russian subjects”. The Dogger Bank Commission thus aptly demonstrated the functioning of such a commission. Even though, the commission was adjudicatory in the sense that it had the authority to apportion the blame on one party, this power was underplayed by the Commissioners who displayed enormous diplomatic wisdom so that the disputants do not actually get into the adversarial mode and this blurring of adjudicatory and fact-finding powers worked to the advantage of the Commission.
The Dogger Bank Commission was the only Commission of Inquiry instituted through the 1899 Convention. The Peace Conference in 1907 resulted in the Second Hague Convention and the first Commission of Inquiry to result from that related to Tavignano incident. This incident occurred during the Turco-Italian War of 1911-12 where the Italian government strongly suspected that France, though remaining neutral, was instrumental in shipping Turkish contraband. The incident occurred when the French vessel Tavignano was arrested and two other vessels were fired upon in what Italy claimed was the High Seas and what France claimed was Tunisian waters. The Commission was set up by virtue of the Hague Convention of 1907 and comprised officers from France, Italy and the United Kingdom. The main issue which the Commission had to decide on was where the arrest and firing incidents took place. After examining numerous witnesses and even visiting the scene of the incident, the Commission concluded that though the arrest may or may not have been carried out in Tunisian waters, the firing incidents certainly happened in Tunisian waters. However, after receipt of the Commission's report, the case came to a close in an out-of-court settlement as the Italians paid 5,000 francs to France. The Tavignano incident demonstrated, once again, how setting up of commissions of inquiry effectively diffused such crises. An important point to note here is that though the Commission was heading towards an arbitral proceeding, it was not adopted in the end as the case was settled out of court. This showed the flexibility and leeway that the Conventions provided for the parties to amicably settle disputes.
In 1916, in what became the third dispute to be referred to such a commission, a German warship sunk the Dutch steamer, the Tubantia and both parties agreed to refer the matter to a commission of inquiry. The Commission came up with a final report in 1922 which put the liability on the German side.
In 1917, during the First World War, a German submarine pursued and sunk a Norwegian vessel and justified its act by stating that even though Norway was a neutral country, the ship was carrying contraband and was liable to use of force. The Commission was set up comprising Spanish, German and Danish naval officers. As with the Tavignano inquiry, the crucial question to be decided by the Commission was where the act took place. The inquiry concluded by holding that Germany was indeed liable and directed it to pay $6 million. The Tiger Inquiry was a first in many respects, particularly because the parties agreed to accept the finding as binding, a departure from Article 14 of the Hague Convention which stated that these findings could not bind the parties. These successes prompted some countries, especially the United States, to sign what are now known as the Bryan treaties. In practice, however, international commissions were hardly, if ever, used and the appointment of the Red Crusader Inquiry Commission in 1961, almost 40 years after the last commission, testifies to this fact.
The Danish vessel Niels Ebbeson arrested the British trawler, the Red Crusader, as the former though that the trawler was fishing in Danish waters. The incident got more complicated when the crew of the Red Crusader managed to resist their guards and flee with the vessel. On being chased by the Danes and fired upon, the ship suffered intensive damage and tensions were heightened as a British frigate entered the scene. The Danish government took a serious view of the incident as the Danish vessel was unarmed but after some deliberations, the two states agreed to set up a Commission of Inquiry. The Commission was a three-member one consisting of international lawyers from Belgium and France and the Inspector-General of Shipping of the Netherlands. Thus, the Commission was entirely independent excluding members of the disputant states. The Commission concluded that there was no proof to the claim that the Red Crusader was fishing within Danish waters and the captain of the ship did indeed try to evade the jurisdiction of the Danish vessel, whose authority he had first accepted. Moreover, the Danes were unjustified in firing at the Red Crusader as it amounted to excessive use of force. The issue was settled, however, by a mutual waiver of claims from both parties. The Commission was much like an arbitral one, in that, it was independent, it let the respective parties conduct the examination of witnesses and most importantly, the parties agreed, like in arbitration, to discuss the final award first before publishing it. The Commission, however, differed from an arbitral one in two ways. First, the Commission was essentially set up to determine facts and not to pass judicial rulings based on the facts. Indeed, once the facts were determined the two parties agreed to waive their claims and the work of the Commission came to an end. Secondly, and more fundamentally, the Commission submitted a report, and not an award, and thus by its very nature, the two parties could afford to be flexible regarding their stand and changed their positions according to the finding of the report.
The Letelier-Moffits Case
The Bryan treaties were a series of bilateral agreements beginning in 1913 by the United States of America to ensure that international disputes with neighbouring countries had a peaceful solution. The name derives itself from the then US Secretary of State William Jennings Bryan who was instrumental in coming up with these treaties so that the United States could fall back on a dispute resolution process to diffuse tensions with neighbouring countries. It was hoped that disputant states would submit their grievances to the Commission established by the treaties so that a peaceful resolution could be sought out. Each signatory nominated two members, a citizen and a foreign national and then the members would choose an independent third party as the fifth member. The Bryan treaties, ambitious as they were, failed to garner much importance in international dispute settlement and the inquiries were the few instances when the Commission was resorted to.
The Letelier and the Moffit case was the only case to be inquired by the Commission set up the Bryan-Suarez Mujica Treaty of 1914. The case arose due to the assassination of the former Chilean Orlando Letelier in 1976 by a car bomb in Washington DC. Not only was Letelier killed, but an American, by the name of Moffit, also died of injuries sustained at the blast. A civil claim was brought against Chile and was successful but the amount payable was never realised. In 1988, the United States of America made a claim against Chile and a Commission was set up regarding the same. However, Chile, in the meantime, agreed to make an ex-gratia payment as compensation to the victim's kin. The two countries subsequently agreed that the sole question to be determined was the extent of amount payable by Chile. The Commission comprising nationals from both parties, along with judges from the International Court of Justice and European Court of Human Rights as well as a well-known international jurist finally gave its decision in January 1992, regarding the extent of compensation.
International Commissions of Inquiry have had a curious run. More than mere fact-finding commissions, they have held adjudicatory powers and have decided a wide range of issues. Even then, their nature and powers have also varied from Commission to Commission. This can be exemplified by the nature of the Dogger Bank Commission with its adjudicatory role played down by the officers for better results or by the nature of the Tiger Inquiry Commission which had a clear fact-finding mandate. Then again, the Red Crusader Commission was almost an arbitral proceeding and so was the Letlier and Moffits Commission. The variety in the nature and powers of each Commission amply demonstrates the flexibility that each State was willing to show in resolving such disputes. Though the Hague Convention envisaged that these incidents would not be major and would not involve the ‘honour' of parties involved, most of the incidents to fall within the purview of the Commission were indeed major with significant political ramifications but each time the Commission of Inquiry deftly handled them and looking from this point of view, the Commissions have been a resounding success. But that is not where the problem lies. The Commissions of Inquiry set up by the Hague Conventions have been used only four times in more than 110 years with the last one being conducted in the 1960s. The Letlier and Moffits inquiry commission was the only commission to be set up by the virtue of the Bryan treaties. That would inevitably lead to the question as to why such commissions have been seldom used. The answer to that question would be obvious. International commissions of inquiry are alternative modes of dispute settlement and are fundamentally fact-finding inquiries set up by an agreement between the disputants. Fact-finding, in itself, narrows down the scope of the commissions but the most important flaw that these commissions have is that they have to be set up through an agreement by the parties. Needless to say, when parties are acrimonious to each other, chances of agreeing to such a mechanism are far-fetched. To illustrate, would Sudan have agreed to set up a Commission of Inquiry by virtue of the Hague Convention to investigate allegations of violation of international humanitarian law by state and non-state actors? The answer would be an emphatic no and so it turned out. It was the Security Council which through a resolution in 2004 set up the Commission of Inquiry on Darfur. Then again, in most cases, elaborate procedures for setting up commissions of inquiry prove to be tedious and time consuming. In most cases, disputes are settled through established diplomatic channels by virtue of negotiations. An example would help illustrate the situation. During the NATO campaign in the Serbian War, an American bomber bombed a Chinese embassy killing 3 Chinese officials. The incident had huge political repercussions and could have been the perfect set-up for an international commission of inquiry. Of course, that did not happen, the reason being both parties thought it expedient to settle the dispute through diplomatic channels resulting in the issuance of an apology and payment of compensation by the United States of America. In many cases, international organizations have an in-built inquiry commission system. A early notable example would include the League of Nations which set up inquiry commissions in seven cases like the Alands dispute between Finland and Turkey in 1921 and the Mosul dispute between Britain and Turkey in 1925. The International Civil Aviation Organisation, too, has used the resources of its own inquiry commissions particularly in the Korean airlines case where a South Korean aircraft was shot down in Soviet territory. Though the Commission could make little headway due to lack of co-operation from the Soviets, whatever little finding the Commission made, that helped the ICAO to universally condemn the Soviet act. The United Nations has also used inquiry commissions in the Iran-Iraq War as well as the attempted coup in the Seychelles. However, I would like to draw attention to two inquiry commissions set up by the United Nations Security Council in recent times. The first one was the International Commission on Darfur established through the Security Council resolution of 1564/2004 to investigate the violations of international humanitarian law by state and non-state actors in that region. The Commission concluded that though both the Government of Sudan and the Janjaweed were responsible for gross violations of international humanitarian law, the Government of Sudan did not possess any genocidal intent. Moreover, the Commission identified certain sections of the militia and government officials as some of those responsible and recommended that the incident should come up before the International Criminal Court. Another inquiry commission which was set up recently by the United Nations Human Rights Council was the Commission of Inquiry to investigate alleged war crimes committed by both sides in the recent Gaza conflict. Headed by Richard Goldstone, the four-member commission came to the controversial conclusion that both the Israeli Defence Forces (IDF) and the Palestinian militants were responsible for the war crimes committed during the conflict. The Commission went further and recommended that the case should come up before the International Criminal Court. The world was divided over the findings of the report with Israel rejecting it summarily while Hamas, which initially rejected it, changed stance and welcomed the report.
The importance of the Hague Conferences of 1899 and 1907and their contribution to international dispute settlement cannot be over-emphasized. The Pacific Settlement of International Disputes, arising out of the deliberations in the Conferences, was described as the Magna Carta for the organization of the civilized world. In the years immediately after the Conferences, the Commissions were set up frequently and were hugely successful. This also showed the intent of the States to resolve their disputes in a peaceful manner. However, after the 1920s, the world would get increasingly fractured as battle lines were drawn again. States resorted to violent means completely disregarding the options of peace settlement. The reason why the next inquiry commission was set up in the 1960s and none after is obvious. States completely lacked the will to enter into agreements setting up the Inquiry Commissions. Thus in recent times, inquiry commissions, though only fact-finding ones, have come up not because of any agreement between States but by third party intervention, which in most cases is the United Nations. The Hague Conventions held tremendous promise but that promise has unfortunately been belied due to the lack of intent shown by the countries involved.
Primary Sources Referred:
Convention for the Pacific Settlement of International Disputes, 1899 and 1907.
Treaty for the Settlement of Disputes that may occur between the United States and Chile, 1914.
United Nations International Commission of Inquiry on Darfur, Report of the International Commission of Inquiry on Darfur available at http://www.un.org/news/dh/sudan/com_inq_darfur.pdf. (last checked on 8th April, 2010)
United Nations Human Rights Council [UNHRC], Report of the United Nations Fact-finding Mission on the Gaza Conflict A/HRC/12/48 (September 25th, 2009) available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf. (last checked on 8th April, 2010)
Secondary Sources Referred:
David Caron, War and Adjudication: Reflections on the 1899 Peace Conference, 94 A.J.I.L. 4, 2000, at p.3.
Karen Kitzman Jackson, The Dogger Bank Incident and the Development of International Arbitration (May, 1974) (unpublished M.A. thesis, Texas Tech University) available at http://etd.lib.ttu.edu/theses/available/etd-08072009-31295015508269/unrestricted/31295015508269.pdf (last checked on 8th April, 2010) at p. 57.
Nathan Hill, International Commissions of Inquiry and Conciliation, 15 Int'l Conciliation 85 (1932-33) at p. 12
N. Bar-Yaacov, The Handling of International Disputes by means of Inquiry ([Oxford University Press], London,1974)
Malcolm Shaw, Public International Law (5th ed.,[Cambridge University Press], Cambridge, 2008)
J.G. Merrils, International Dispute Settlement 48 (3rd edition, [Cambridge University Press], Cambridge, 1998)
J.G. Merrils, International Dispute Settlement (4th edition, [Cambridge University Press], Cambridge, 2005)
Leo Gross, New Rules and Institutions for the Peaceful Settlement of International Disputes, 76 A.S.I.L Proc. 131, 1982.
Denys Myers, The Commission of Inquiry, 1913-14 World Peace Organization Pamphlet Series 3, 1913-14.