The Roles and Functions of Atrocity-Related United Nations Commissions of Inquiry in the International Legal Order: Navigating between Principle and Pragmatism: Leiden Studies on the Frontiers of International Law, cartea 6
Autor Catherine Harwooden Limba Engleză Hardback – 31 oct 2019
The book traces the inquiry process from establishment and interpretation of the mandate to legal analysis, production of findings and recommendations. The research finds that the turn to international law fundamentally shapes the roles and functions of UN atrocity inquiries. Inquiries continuously navigate between realms of law and politics, with the equilibrium shifting in different moments and contexts.
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Specificații
ISBN-13: 9789004411234
ISBN-10: 9004411232
Dimensiuni: 155 x 235 mm
Greutate: 0.72 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Leiden Studies on the Frontiers of International Law
ISBN-10: 9004411232
Dimensiuni: 155 x 235 mm
Greutate: 0.72 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Leiden Studies on the Frontiers of International Law
Cuprins
Foreword
Andrew ClaphamAcknowledgements
List of Abbreviations
Introduction
1 The Phenonemon of Atrocity-Related Inquiry
2 Delineation of UN Atrocity-Related Inquiry
2.1International Commissions of Inquiry
2.2Established by the United Nations
2.3Focus on Situations of Atrocities
3 Structure of the Book
4 Some Words on Methodology
1 Charting the Rise of UN Atrocity-Related Inquiry
Introduction
1 Interstate Atrocity-Related Inquiries
1.11919 Commission
1.2Inter-Allied Commissions of Inquiry
1.3United Nations War Crimes Commission
2 ‘Geneva’ International Humanitarian Law Inquiry
3 Atrocity-Related Inquiries by International Organisations Other than the UN
3.1League of Nations
3.2Regional Organisations
4 UN Atrocity-Related Inquiries
4.1Sparse Atrocity-Related Inquiry Practice: 1945–1991
4.2Proliferation of UN Atrocity-Related Inquiries: 1992 and Beyond
Conclusions
2 Establishing the Mandate: Mandating Authorities as Architects of Atrocity-Related Inquiries
Introduction
1 Dynamics of Establishment
1.1Institutional Framework Relevant to UN Atrocity-Related Inquiries
1.2State Consent and Cooperation
1.3Selection of Situations
1.4New York/Geneva Dynamics
2 Legal Dimensions of Written Mandates
2.1Investigative Focus and Recommendations
2.2Legal Lenses of Analysis
2.3Challenges to Legal Lenses of hrc-Led Inquiries
3 Impartiality of Written Mandates
3.1Geographic Parameters
3.2Temporal Scope
3.3Actors under Scrutiny
3.4Prejudgment of Findings
4 Appointment and Composition of Commissions
4.1Appointment Processes
4.2Commissioner Independence and Impartiality
4.3Commissioner Expertise
5 Decisions on Operational Aspects
5.1Scope of Discretion Accorded to Commissions
5.2Provision of Resources and Time Limits
6 Principle and Pragmatism in Mandating Authorities’ Choices
6.1Turn to International Law
6.2Inquiry to Condemn Atrocities
6.3Inquiry as Building and Releasing Pressure
Conclusions
3 Mandate Interpretation and Implementation: Commissions as Engineers of Their Roles and Functions
Introduction
1 Interpretation of the Mandate
1.1Geographic Parameters
1.2Temporal Scope
1.3Actors under Scrutiny
1.4Prejudgment of Findings
2 Principles Guiding Mandate Implementation
2.1Impartiality
2.2Centrality of Victims
2.3Accountability
3 Practical Challenges Informing Mandate Implementation
3.1Resource and Time Limitations
3.2Security Concerns
3.3Lack of Territorial Access
3.4States’ Refusals to Provide Information
4 Fostering Quality in Methods of Work
4.1Judicial Procedures
4.2Rules of Procedure and Terms of Reference
4.3Standards of Proof
4.4Best Practices
Conclusions
4 Identification of the Applicable Legal Framework
Introduction
1 Identification of Legal Dimensions of the Mandate
1.1Inclusion of Legal Dimensions in Factual Mandates
1.2Conservative Interpretations of Legal Lenses
1.3Broad Interpretations of Legal Lenses
1.4Discussion
2 Applicability of International Human Rights Law
2.1Applicability of Human Rights Treaties
2.2Territorial Scope of Applicability
2.3Applicability in Situations of Armed Conflict
2.4Applicability to Organised Armed Groups
3 Applicability of International Humanitarian Law
3.1Legal Classifications of Armed Conflict
3.2Applicability to Organised Armed Groups
3.3Applicability to Peace-Enforcement Missions
3.4 Discussion
4 Applicability of International Criminal Law
Conclusions
5 Law-Application in the Inquiry Context
Introduction
1 Violations of Economic, Social and Cultural Rights
2 Violations Arising from Lethal Attacks in Armed Conflict
2.1Right to Life in Armed Conflict
2.2Assessment of Lethal Attacks under ihl
2.3Fact-Finding Challenges and Strategies
3 Violations Involving Sexual and Gender-Based Violence
3.1Recognition of Violations and Victims
3.2Assessment of Violations
4 Genocide
4.1Protected Groups
4.2Dolus Specialis
4.3Genocidal Policy or Pattern of Conduct
4.4Caution in Making Findings of Genocide
5 Crimes against Humanity
5.1Interpretation of Contextual Elements
5.2Assessment of Crimes against Humanity
6 Cross-Cutting Analysis
6.1Focus on Incident-Based Violations
6.2Level of Certainty of Findings of Violations
6.3Rigour of Legal Analysis
Conclusions
6 Translating Violations to Responsibility Regimes in an ‘Era of Accountability’
Introduction
1 Dimensions of Accountability
2 Responsibility under International Law
2.1State Responsibility
2.2Responsibility of International Organisations
2.3Responsibility of Collective Non-State Actors
2.4Individual Responsibility
2.5Concluding Observations
3 Accountability Recommendations
3.1Prosecutions of International Crimes
3.2Restitution and Compensation
3.3Truth-Seeking Measures
3.4Other Measures of Satisfaction
3.5Guarantees of Non-Repetition
3.6Concluding Observations
4 Accountability Roles and Functions
4.1Legal Accountability
4.2Moral Accountability
4.3Political Accountability and Accountability Politics
Conclusions
Conclusions
1 Summary of Findings
2 Reflections on Roles and Functions of Contemporary Inquiry
3 Back to the Future
Appendix: United Nations Atrocity-Related Inquiries 1945–2018
Bibliography
Index
Andrew ClaphamAcknowledgements
List of Abbreviations
Introduction
1 The Phenonemon of Atrocity-Related Inquiry
2 Delineation of UN Atrocity-Related Inquiry
2.1International Commissions of Inquiry
2.2Established by the United Nations
2.3Focus on Situations of Atrocities
3 Structure of the Book
4 Some Words on Methodology
1 Charting the Rise of UN Atrocity-Related Inquiry
Introduction
1 Interstate Atrocity-Related Inquiries
1.11919 Commission
1.2Inter-Allied Commissions of Inquiry
1.3United Nations War Crimes Commission
2 ‘Geneva’ International Humanitarian Law Inquiry
3 Atrocity-Related Inquiries by International Organisations Other than the UN
3.1League of Nations
3.2Regional Organisations
4 UN Atrocity-Related Inquiries
4.1Sparse Atrocity-Related Inquiry Practice: 1945–1991
4.2Proliferation of UN Atrocity-Related Inquiries: 1992 and Beyond
Conclusions
2 Establishing the Mandate: Mandating Authorities as Architects of Atrocity-Related Inquiries
Introduction
1 Dynamics of Establishment
1.1Institutional Framework Relevant to UN Atrocity-Related Inquiries
1.2State Consent and Cooperation
1.3Selection of Situations
1.4New York/Geneva Dynamics
2 Legal Dimensions of Written Mandates
2.1Investigative Focus and Recommendations
2.2Legal Lenses of Analysis
2.3Challenges to Legal Lenses of hrc-Led Inquiries
3 Impartiality of Written Mandates
3.1Geographic Parameters
3.2Temporal Scope
3.3Actors under Scrutiny
3.4Prejudgment of Findings
4 Appointment and Composition of Commissions
4.1Appointment Processes
4.2Commissioner Independence and Impartiality
4.3Commissioner Expertise
5 Decisions on Operational Aspects
5.1Scope of Discretion Accorded to Commissions
5.2Provision of Resources and Time Limits
6 Principle and Pragmatism in Mandating Authorities’ Choices
6.1Turn to International Law
6.2Inquiry to Condemn Atrocities
6.3Inquiry as Building and Releasing Pressure
Conclusions
3 Mandate Interpretation and Implementation: Commissions as Engineers of Their Roles and Functions
Introduction
1 Interpretation of the Mandate
1.1Geographic Parameters
1.2Temporal Scope
1.3Actors under Scrutiny
1.4Prejudgment of Findings
2 Principles Guiding Mandate Implementation
2.1Impartiality
2.2Centrality of Victims
2.3Accountability
3 Practical Challenges Informing Mandate Implementation
3.1Resource and Time Limitations
3.2Security Concerns
3.3Lack of Territorial Access
3.4States’ Refusals to Provide Information
4 Fostering Quality in Methods of Work
4.1Judicial Procedures
4.2Rules of Procedure and Terms of Reference
4.3Standards of Proof
4.4Best Practices
Conclusions
4 Identification of the Applicable Legal Framework
Introduction
1 Identification of Legal Dimensions of the Mandate
1.1Inclusion of Legal Dimensions in Factual Mandates
1.2Conservative Interpretations of Legal Lenses
1.3Broad Interpretations of Legal Lenses
1.4Discussion
2 Applicability of International Human Rights Law
2.1Applicability of Human Rights Treaties
2.2Territorial Scope of Applicability
2.3Applicability in Situations of Armed Conflict
2.4Applicability to Organised Armed Groups
3 Applicability of International Humanitarian Law
3.1Legal Classifications of Armed Conflict
3.2Applicability to Organised Armed Groups
3.3Applicability to Peace-Enforcement Missions
3.4 Discussion
4 Applicability of International Criminal Law
Conclusions
5 Law-Application in the Inquiry Context
Introduction
1 Violations of Economic, Social and Cultural Rights
2 Violations Arising from Lethal Attacks in Armed Conflict
2.1Right to Life in Armed Conflict
2.2Assessment of Lethal Attacks under ihl
2.3Fact-Finding Challenges and Strategies
3 Violations Involving Sexual and Gender-Based Violence
3.1Recognition of Violations and Victims
3.2Assessment of Violations
4 Genocide
4.1Protected Groups
4.2Dolus Specialis
4.3Genocidal Policy or Pattern of Conduct
4.4Caution in Making Findings of Genocide
5 Crimes against Humanity
5.1Interpretation of Contextual Elements
5.2Assessment of Crimes against Humanity
6 Cross-Cutting Analysis
6.1Focus on Incident-Based Violations
6.2Level of Certainty of Findings of Violations
6.3Rigour of Legal Analysis
Conclusions
6 Translating Violations to Responsibility Regimes in an ‘Era of Accountability’
Introduction
1 Dimensions of Accountability
2 Responsibility under International Law
2.1State Responsibility
2.2Responsibility of International Organisations
2.3Responsibility of Collective Non-State Actors
2.4Individual Responsibility
2.5Concluding Observations
3 Accountability Recommendations
3.1Prosecutions of International Crimes
3.2Restitution and Compensation
3.3Truth-Seeking Measures
3.4Other Measures of Satisfaction
3.5Guarantees of Non-Repetition
3.6Concluding Observations
4 Accountability Roles and Functions
4.1Legal Accountability
4.2Moral Accountability
4.3Political Accountability and Accountability Politics
Conclusions
Conclusions
1 Summary of Findings
2 Reflections on Roles and Functions of Contemporary Inquiry
3 Back to the Future
Appendix: United Nations Atrocity-Related Inquiries 1945–2018
Bibliography
Index
Notă biografică
Catherine Harwood, Ph.D. (2018), Leiden University, is Associate Legal Officer at the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations. She has published several works on fact-finding and transitional justice.