Assessing the Lawfulness of the Accountability Turn of Human Rights Council-mandated Commissions of Inquiry. A Practice-based Study

In recent decades, UN-mandated commissions of inquiry have undergone significant evolution, marked by a growing engagement with ICL-related notions and a discernible focus on individual criminal responsibility. Commissions of inquiry are now frequently tasked with: i. determining whether documented violations may amount to international crimes ii. identifying alleged perpetrators and iii. collecting and preserving evidence to support future accountability efforts, including criminal proceedings. This trend, also referred to as the “accountability turn” of UN-mandated commissions of inquiry, has attracted the attention of States, some of which have expressed concerns about its lawfulness. Based on the premise that leaving perceptions of unlawfulness unaddressed could undermine the practical functioning of these investigative mechanisms – for example, by discouraging States’ cooperation – this study aims to comprehensively assess the lawfulness of the accountability turn under international law. In doing so, it focuses specifically on the investigative mechanisms established by the HRC – the UN subsidiary organ that, since its inception, has established the majority of commissions of inquiry with ICL-oriented mandates. Chapter One traces the historical development of international commissions of inquiry, from their origin as dispute settlement mechanisms between States to contemporary UN-mandated investigative mechanisms. It highlights that elements of the accountability turn have deep historical roots, even if the phenomenon has only fully emerged in recent decades. The Chapter concludes by outlining the academic debate surrounding the increasing focus on ICL-related concepts in the work of commissions of inquiry. Chapter Two examines the arguments raised by some States against commissions of inquiry with ICL-oriented mandates. It is divided into two parts: the first part analyses States’ assertions that the accountability turn infringes upon substantive rules of international law, while the second part focuses on claims that ICL-oriented mandates give raise to institutional and procedural concerns. The Chapter aims to evaluate the persuasiveness of these legal arguments from a strictly theoretical perspective and ultimately determine whether they are well-founded or largely unsubstantiated. Chapter Three starts from the premise that, in the absence of a judicial body institutionally designated to review UN activities, a consistent and repeated practice of States and UN organs in favour of the accountability turn could serve a key legitimizing function. Against this backdrop, Chapter Three investigates whether the majority of UN Member States and relevant UN organs support commissions of inquiry with ICL-oriented mandates, or whether considerable dissatisfaction exists. The Chapter’s objective is to evaluate the degree of support for the accountability turn and explore the legal implications of such support. This study concludes that the accountability turn of HRC-mandated commissions of inquiry is fully compatible with international law, provided that it does not involve publicly portraying alleged perpetrators of international crimes as guilty. The accountability turn is also strongly supported by the subsequent practice of both relevant UN organs and the majority of UN Member States. This subsequent practice carries significant interpretative weight and, when considered alongside other means of interpretation, supports the conclusion that the HRC’s mandate should be understood as encompassing the competence to establish investigative mechanisms with ICL-related functions.