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Statement by Judge LIU Daqun at the Launch of ‘Quality Control in Fact-Finding’ in The Hague on 25 November 2013

It is my great pleasure to take part in this event, for the launch of the book ‘Quality Control in Fact-Finding ’. This book is a concrete result of a seminar co-organized by the Forum for International Criminal and Humanitarian Law, the European University Institute, and Peking University International Law Institute which took place on 20 May 2013. The publication discusses how fact-finding mechanisms for alleged violations of international human rights and international criminal and humanitarian law can be improved. These mechanisms are analysed and assessed in detail by 19 distinguished authors.

The past two decades have seen enormous growth in the number and type of institutions in the field of international criminal justice. In addition to the establishment of a permanent international criminal court and the ad hoc international tribunals, various truth commissions and other investigative bodies have also begun to take root as a viable means of investigating social problems, inquiring into circumstances of human rights violations, addressing international crimes, achieving post-conflict justice, and providing recommendations for restoring peace and justice.

Although undoubtedly international criminal trials remain the norm where one side of a conflict emerges victorious, truth-seeking nonetheless has become an important post-conflict goal in its own right. This experiment has proven productive, and thus academics have begun to map and analyse the best practices. These studies have in turn fed back into practice. The quality of the mandate, the work processes, and reports of an international fact-finding commission ultimately determine its utility, efficacy, and legitimacy. Therefore, increasing the awareness and understanding of quality control may enhance the value of fact-finding to victims and the international community, as well as indirectly to the taxpayers who make it possible for Governments to support such commissions.

This book summarises the experiences of various truth commissions, including the obstacles and problems encountered, and tries to answer several questions of vital importance to these types of mechanisms.

It focuses on quality control in five concrete contexts: (1) the formulation of the mandate of relevant international fact-finding; (2) the work processes in relevant fact-finding and analysis; (3) the composition, staffing, resources and organisation of such fact-work; (4) the writing of fact-finding reports and conclusions; and (5) public communication in connection with the submission of the final report.

The book takes a unique look at the work of fact-finding missions, and addresses the important question of how quality control in such missions could be improved. The discussion is well rounded and comprehensive as well as rich in illuminative examples and case studies from a wide range of geographical regions. For instance, Judge David Re discusses in detail the Commission of Experts for the former Yugoslavia established pursuant to a United Nations Security Council Resolution in 1992 and how the ICTY used the factual conclusions of the Commission’s reports. Notably, that Commission has served as a model ever since. Justice Richard J. Goldstone in his chapter analyses the experience and lessons in the Clayton Sithole inquiry and Goldstone Commission in South Africa, the Oil-for Food Inquiry in Iraq, and the Gaza Fact-finding Mission.

Several authors in this collection stress that the purpose of investigative bodies in the international criminal arena is to investigate and address past crimes in order to promote national conciliation.

During the Florence conference on 20 May 2013, I was very glad to see a strong Chinese presence. Assistant Professor WU Xiaodan, a young professional from China, discusses the formation of the fact-finding mechanisms. They are usually officially authorised or empowered by the parent Governments or international authorities, such as the United Nations. Where this is the case, the body may be created as part of a broader peace or reconciliation agreement among all the parties to a conflict, or it may be the product of unilateral action by the country’s executive branch, which tends to have the legal and political means to take swift action to address human rights abuses. Wolfgang Kaleck and Carolijn Terwindt tell us about the role non-government organisations could play in fact-finding and the problems and obstacles they are facing.

In her chapter, Ms. FAN Yuwen (Ph.D. candidate at Peking University) specifically indicates that an investigative body should have a clear mandate to provide a legal template for investigation. She also points out that truth commissions must set out explicitly the rules by which they will accumulate evidence, even if those rules are not as strict as a court’s. No matter the tools that are ultimately settled on, those rules must be described in the body’s constitutive document. Although truth commissions will necessarily have rules that differ from those of criminal tribunals, they should be guided by the principles of fairness and due process. Only clear rules equitably applied can ensure that those ethics prevail.

Simon De Smet writes about the standard of admission of evidence. To be sure, the standard for admitting evidence outside the criminal justice system may not be as burdensome as that of international criminal tribunals. Nevertheless, there must be some quality control for the admission of evidence and, indeed, for the whole scheme of fact-finding, from the formation of the mandate to the composition of the commission, the rules of investigation, and the quality of any final reports.

Chris Mahony takes the commission on investigation of disappeared persons in Nepal as an example, and explores quality control in witness sensitive practices. Interviewing victims and witnesses is the most important work of a commission. The interviews should follow standard procedures, much like in a court of law. After all, many of the considerations that have governed the collection of witness testimony in courts are present with commissions as well.

Aside from the legal procedural concerns, commission designers must also consider the sensitive nature of their work. It is not uncommon for witnesses to the horrific crimes associated with Truth Commissions to remain traumatised by their experience. For this reason, victims should be allowed to submit their statements before, during, or after the interview in the event they cannot proceed verbally. Normally, as a matter of common sense, the interview should be conducted in private and, if necessary, pseudonyms or other protective measures be applied. Moreover, in order to facilitate the work of the commission, these witnesses should have access to medical and psychological counselling before and, usually, after the interview.

It is essential to the mission of truth commissions that they engage individuals and public in the process of truth-seeking. This can be accomplished in a number of ways. When broadcast on television or radio, commissions can engage an entire country in the truth-seeking process. Similarly, a commission may hold public hearings. Greater transparency afforded by public hearings permits society as a whole to engage in its process. The information the commission encounters will thus become a matter of public record and, one would hope, public awareness.

Isabelle Lassee dwells on the importance of relevant and well-supported recommendations. Indeed, the commission’s final report is its legacy and therefore it is one of the most crucial elements of the investigation. Normally, the final report will include, but not be limited to, the commission’s purpose and mandate, its composition, work and work product, and its findings and conclusions. It may also outline recommendations of how to pursue further redress and to prevent such crimes from recurring. It is my contention that investigating past human rights abuses is critical in preventing them in the future, but investigation is only the first step: after investigation there must come reform. So the recommendations of a commission must concentrate on the establishment of rule of law and may include possible prosecution, institutional reform, reparations, and even suggestions for joining a particular international human rights convention.

To sum up, the authors of this collection did a great job in exploring every aspect of fact-finding, bringing together practice, know-how, and theoretical frameworks so as to make the book refreshing and comprehensive.

In conclusion, I would like to take this opportunity to express my sincere gratitude to Professor Morten Bergsmo, who devoted an endless amount of his time and energy for the dissemination of international law and international humanitarian law. Under his guidance, the Centre for International Law Research and Policy seeks to contribute to academic activities and engage with practitioners and policy makers in international law, by bridging scholarship, publications, capacity development dialogues and other forms of knowledge transfer, as well as the development of knowledge tools. The Forum of International Criminal and Humanitarian law conducts expert seminars and meetings on carefully selected topics worldwide, and, up to now, the Torkel Opsahl Academic EPublisher has published 19 books in its Publication Series, including this one, as well as many policy briefs, and issues in the Occasional Paper Series and the Law of the Future Series. Acting as a Visiting Professor in the most prestigious Chinese university, Professor Bergsmo does not only contribute to the dissemination of international human rights law and international criminal law in China, but also greatly enhances the exchanges between academics, scholars and students in the East and West. I think he should be credited. Thank you Professor Morten Bergsmo.


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