Back in 2009, the Parliamentary Assembly agreed to examine the advisability of setting up an independent European commission of inquiry into serious allegations of grave human rights violations (“the Cassese proposal”).
The Committee on Legal Affairs and Human Rights, having balanced the costs and benefits of various options, has expressed its preference for strengthening the Assembly’s own investigatory powers rather than creating a completely new mechanism which would have limited added value with respect to the Council of Europe’s existing human rights monitoring bodies, such as the European Court of Human Rights and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).
According to the Committee on Legal Affairs and Human Rights, the Assembly’s present mechanism of parliamentary rapporteurs, mandated to prepare reports on specific topics, provides – to a certain extent – the possibility to implement certain elements of the Cassese proposal, which should be fed into the ongoing reform process of the Assembly:
In order to deal effectively with serious and mass violations of international human rights and humanitarian law,Noteindividual criminal responsibility is more efficient than state responsibility in preventing future violations and relieving the suffering of victims. In reply to the question “How are we to make procedures to establish the criminal responsibility of the perpetrators of such violations more effective?”, Mr Cassese developed the idea of setting up an international non-judicial supervisory mechanism, namely an independent European commission of inquiry.
The idea is based on three basic postulates:
These commissions of inquiry, which are often set up selectively and temporarily under strong political pressure, usually comprise several independent experts and have specific, narrowly defined terms of reference and variable powers of investigation (on-the-spot visits in agreement with the state concerned, hearings of witnesses and public officials, transmission of case files and items of evidence, etc.).
Recent examples: “Cassese” Commission on Darfur/Sudan;Note “Richard Goldstone” CommissionNoteNoteon the military operations conducted in Gaza before, during and after the period from 27 December 2008 to 18 January 2009; Independent international commission of inquiry on the incidents on board the Mavi Marmara flotilla.NoteNote
Special procedures are represented either by an individual (“Special Rapporteur”, “Special Representative of the Secretary General”, “Representative of the Secretary General”, or “independent expert”) or by a working group, which usually comprises five members (one for each region of the world). The special procedure mandates are prepared and defined under the resolution which instigates them. Mandate holders serve on an individual basis and receive no remuneration or financial compensation. Mandate holders also conduct country visits (in agreement with the state concerned) in order to investigate the human rights situation at the national level. Some countries have issued a “standing invitation” for special procedures, which means that they are, in principle, prepared to receive all mandate holders. After the visit, a mission report is drawn up setting out conclusions and recommendations. A “code of conduct” and “special procedures manual” setting out guidelines and working methods for mandate holders were adopted in 2008.
This group has the main (humanitarian) task of helping the families of disappeared persons to ascertain the fate and current location of the disappeared persons (it has no jurisdiction to establish responsibility in specific cases of disappearances or other human rights violations committed at the time of disappearance) by maintaining links with the families of disappeared persons and the relevant governments. It may also receive and consider individual communications regarding disappearances and prepare recommendations. It is also responsible for supervising progress made by states in honouring their obligations under the 1992 Declaration on enforced disappearance and assist governments in implementing them, inter alia by means of on-the-spot visits.
It may also, under an emergency procedure, accept from anyone with a legitimate interest a request for urgent action to seek and locate a disappeared person, and may transmit to the state concerned a request to “take all the necessary measures, including interim measures, to locate and protect the person concerned in accordance with this convention”. This is rather similar to the interim measures which the European Court of Human Rights can issue (Rule 39 of the Rules of Court).
The committee may conduct on-the-spot visits (in agreement with the state concerned) in the event of a serious infringement of the convention, communicating its observations and recommendations to the state, without any restrictions relating to confidentiality.
Lastly, the committee may issue urgent appeals to the General Assembly of the United Nations if it receives information to the effect that enforced disappearances are occurring in a general or systematic manner throughout the territory of one of the states parties.
Lastly, alongside the indefatigable and remarkable humanitarian work of the International Red Cross in the context of armed conflicts and post-conflict situations,NoteArticle 90 of the Additional Protocol to the 1949 Geneva Conventions provides for the setting up of an International Fact-Finding Commission with a view to preserving the safeguards granted to the victims of armed conflicts. Officially inaugurated in 1991, the commission is a permanent international body primarily mandated to investigate any alleged infringement or serious violation of international humanitarian law. It has fifteen members serving on an individual basis, elected by the states which have recognised its jurisdiction. Despite the fact that 71 states from all the continents have already recognised its jurisdiction, the commission has not yet received a mandate to inquire.Note
On 2 December 2008, the Council of the European Union set up an independent international fact-finding mission on the conflict in Georgia,Note geared to investigating the origins and development of the conflict in Georgia, including in the light of international humanitarian law and human rights, and the allegations that had emerged in this context. The results of the inquiry were presented to the parties to the conflict, and to the Council, the Organization for Security and Co-operation in Europe (OSCE) and the United Nations, in the form of a report.Note This was the first such mission of inquiry in the history of the European Union.
Innumerable investigatory missions are regularly conducted by larger NGOs with the requisite logistical and financial resources (Amnesty International, Human Rights Watch, International Federation for Human Rights (FIDH) and Memorial). The missions are often assigned to lawyers or high-level independent experts. We might mention, in this context, the “Guidelineson International Human Rights Fact-Finding Visits” and Reports (the Lund-London Guidelines) of June 2009,Note which are geared to improving the accuracy, objectivity, transparency and credibility of human rights inquiries, and are primarily intended for NGOs.
The Council of Europe already has considerable experience of investigatory missions. Apart from its judicial organ, the European Court of Human Rights,Notethe Organisation has several other mechanisms capable of conducting various types of inquires, including:
The Parliamentary Assembly of the Council of Europe, its political statutory organ, has sent many rapporteurs to areas in which serious large-scale human rights violations have been perpetrated, including:
Parliamentary rapporteurs may visit the region in question and the state(s) concerned are duty-bound to co-operate in the organisation of fact-finding visits. Rapporteurs are elected by the competent committee seized for report by the Assembly on the basis of motions for a resolution or a recommendation tabled by at least 20 parliamentarians from at least five different national delegations. They are assisted by the respective committee secretariats. The level of co-operation from the states in question is generally satisfactory, given that the procedure is not, in principle, confidential. However, the rapporteurs are free to protect their sources if necessary.Note
The Committee on Legal Affairs and Human Rights has also set up an ad hoc sub-committee responsible for investigating the disappearance of four opposition figures in Belarus. The sub-committee, which was chaired by Mr Sergei Kovalev (Russia, ALDE), was unable to visit Belarus owing to lack of co-operation by the authorities, but it did hear a number of witnesses in Strasbourg. It placed the information it gleaned at the disposal of the rapporteur subsequently appointed, Mr Christos Pourgourides (Cyprus, EPP/CD), who was able to complete the inquiry also because the authorities initially co-operated with him by allowing him access to key suspects and witnesses. In 2004, Mr Pourgourides presented his report to the Assembly, setting out serious accusations against leading representatives of the Belarusian authorities, including the former Minister of the Interior, Mr Sivakov, and the former Head of the Presidential Administration and Prosecutor General, Mr Sheyman.Note
This instrument has some weaknesses and shortcomings:
The CPT is a non-judicial, preventive, convention-based mechanism that was set up to protect prisoners and detainees. It is made up of independent and impartial experts appointed by the Committee of Ministers in light of a recommendation by the Bureau of the Assembly, itself advised by the Committee on Legal Affairs and Human Rights and its Sub-Committee on Human Rights. The CPT mechanism is based on a system of in situ visits which comprises several strands:
The Office of the Commissioner for Human Rights is a non-judicial institution with broad, flexible terms of reference enabling it to conduct a variety of tasks (country visits, thematic recommendations, awareness raising and promotion of human rights and good officesNote). As the Steering Committee for Human Rights (CDDH) points out, the Commissioner can “conduct fact-finding missions in situations of serious violations of human rights (in connection with enforced disappearances) and formulate recommendations accordingly. Such a mechanism would be flexible, given the nature of the Commissioner’s terms of reference, and would permit rapid reaction to increasing cases of enforced disappearances in a given area. It would therefore be particularly well-suited to cases of enforced disappearances and could usefully complement the Court’s judicial action”.NoteHowever, the Commissioner’s terms of reference do not, in principle, permit him to deal with individual cases, apart from his specific mandate to protect human rights defenders. Furthermore, in pursuance of the new Article 36, paragraph 3, of the European Convention on Human Rights on third-party intervention, the Commissioner, intervening at the public hearing in the case of M.S.S. v. Belgium and Greece, pointed out that he intended using such powers of intervention exclusively in cases liable to have an impact on all member states.Note
Under the Cassese proposal, the commission would seem to have jurisdiction only in respect of serious, blatant and systematic violations of human rights, such as would constitute international crimes (torture, genocide, crime against humanity, terrorism). In international law, some grave violations of human rights and humanitarian law may constitute international crimes, most of which are codified in the Statute of the International Criminal CourtNote (in particular war crimes, crimes against humanity and genocide), and which involve the individual criminal responsibility of their perpetrators.
However, within the Council of Europe, the definition of what constitutes a “serious violation” of human rights is currently under examination and might provide a basis for the inquiry commission’s terms of reference. Under the authority of the Steering Committee for Human Rights, the Committee of Experts on Impunity is instructed to draw up guidelines against impunity in connection with serious human rights violations, derived in particular from the case law of the European Court of Human Rights and the proceedings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Draft Guidelines on Eradicating Impunity for Serious Human Rights Violations are in the process of being finalised.NoteNote These appear relevant in the present context, since “serious violations” of human rights, within the meaning of the draft, may include:
Under the proposal, the commission would only have jurisdiction for the ascertainment of the facts and for their provisional legal classification.
The author of the proposal does not specify this. A permanent mechanism would certainly have the advantage of establishing once and for all its mode of operation, its working methods, the duties of states to co-operate and so on, and consequently of having a permanent infrastructure and the requisite resources, which could be speedily marshalled as necessary, thus saving considerable time. A mechanism like this could therefore be at the same time permanent (routine administrative tasks would be expedited by a very limited number of staff) and placed on standby until a specific mandate to inquire is obtained.
Under the proposal, the commission could receive applications from the victims themselves, or from the state on whose territory the acts were committed, or even by the victims’ states of nationality.
Several questions thus arise:
Which connotation should be given to the word “victim”? Would it only mean the immediate victim, the potential victim, the immediate victim and persons close to him or her or, exactly as contemplated by Article 24, paragraph 1 of the International Convention for the Protection of All Persons from Enforced Disappearance of 2006, “any individual who has suffered harm as the direct result of an enforced disappearance”?
It should also be foreseen that the commission may act proprio motu, or at the request of the Secretary General of the Council of Europe.
What about the admissibility criteria for referral? Would the only criterion indicated by the originator of the proposal (the application must be well founded a priori) suffice? Should plaintiffs also be required to lodge their complaints beforehand with the appropriate agencies of the country concerned?
As I see it, the following powers could be envisaged for a commission of this kind:
One might also consider having the proposed inquiry commission’s investigative powers replicate those vested in the “Cassese” Commission on Darfur/Sudan.Note
In this respect the Cassese proposal resembles the procedure already established in the CPT. The principle would thus be confidentiality, and publicity would be seen as an exceptional diplomatic means of pressure against a state failing to co-operate or not abiding by the commission’s conclusions.Note
Where would the plaintiff, who would only receive a concise summary of these conclusions, stand in the procedure? What if the plaintiff was a member state?
Under the proposal, the commission would be made up of independent experts of irreproachable reputation and high moral authority.
There are in fact several possible choices:
The independent experts could be appointed by the President of the Strasbourg Court and the Secretary General of the Council of Europe. They would form a pool of experts from which a choice (of three or five members) could be made for each investigation by the Secretary General in agreement with the President of the Court. Expenditure would only be incurred from the time when the commission was actually engaged on a specific assignment.
The question arises where such a mechanism could be fitted in. The possibilities are manifold and all have both advantages and drawbacks:
The question of the added value that could accrue from such a commission remains, as the Council of Europe seems far from bereft of workable possibilities for investigation in the field of human rights, on condition that the necessary political resolve is present whenever the need for a specific inquiry becomes evident.Note The act of creating an inquiry commission as proposed would provide proof that this resolve did exist, and would obviate the need to drum up the required consensus on each occasion and to improvise the logistical and legal arrangements case by case.
The European Convention on Human Rights, aiming to avoid plurality of international proceedings in the same cases, disables the Court from entertaining an application which has already been examined by an international authority (Celniku v. Greece, Application No. 21449/04, judgment of 5 July 2007, paragraph 39).
If the inquiry commission is called on to consider individual complaints, under a procedure of its own (of an adversarial nature) and to deliver conclusions on them possibly leading to a settlement of the dispute, the Court might declare inadmissible an application lodged with it but previously submitted to the commission, in that event regarded as an international agency of investigation or settlement.Note Admittedly this could help relieve the Court’s case load but on the other hand would deprive plaintiffs of any remedy in Strasbourg, and that would be inimical to the protection of human rights.
Thus, on the face of it, the equation seems fairly hard to resolve, except perhaps by limiting a future inquiry commission’s remit to establishing and assessing the facts on a provisional basis (without making specific and/or final determinations on an application brought by a victim), and likewise limiting the inquiry commission’s remit to situations of violations of massive proportions so that it need not rule on individual cases.
The questions concern in particular: