UN Fact-Finding
a single six-year period for country mandates. To guarantee their independence, mandate-holders, whether as part of the Special Procedures or oth- erwise, are not employed by the UN and receive no financial rewards for their work. Consequently, mandate-holders are often academics, judges, or retired experts who can afford to take on this work or have the (financial) backing of their employers.
Appointment procedures aim to select mandate- holders based on geographical distribution and according to gender balance. The appointment of women still seems to be a challenge, as only about a third of the mandate-holders are female. A point of criticism frequently resurfacing, but never ad- dressed to everyone’s satisfaction, is the concern that the aim for geographical distribution under- mines the possibility of getting the most qualified experts to hold a mandate. The main counter-argu- ment to this criticism is that geographical distribu- tion contributes to the objectivity of the fact-finding exercise.
Fact-finding missions are established by a UN resolution that contains the mandate describing the purpose and tasks of the mission. The formula- tion of these mandates is often vague and it is left to the mandate-holder to interpret the mandate. Even in situations where states have claimed that the mandate-holder had acted outside of the given mandate, precedence was given to the mandate- holder’s interpretation of his/her mandate. It is ar- gued that this flexibility is necessary to allow the mandate-holder to deal with varying circumstanc- es in different situations of human rights violations. Yet, others assert that too much power is ascribed to an independent individual expert who is not em- ployed by the UN.
State Sovereignty and State Collaboration
The key activity of fact-finding missions is the on- site investigation in a country or region where hu- man rights violations are thought to have occurred or where such violations are allegedly being com- mitted. That means that the actual investigation is
conducted in the domestic sphere of a country. It seems counter-intuitive that states would allow in- vestigations within their territory that could incrimi- nate them, let alone that states would contribute to and facilitate these exercises.
Not surprisingly, in the early days of the use of fact-finding, some states argued that since human rights issues fall within the domestic sovereignty and the UN is not allowed to interfere with domes- tic matters (Article 2(7) UN Charter), fact-finding missions had no legal basis. It was argued against that position that with the signing of the UN Char- ter, human rights became an issue of international concern. Although the vast majority of states have accepted this interference with human rights in the domestic sphere, the outcome of a fact-finding mission remains highly dependent upon the col- laboration of the state. For each mission the man- date holder needs to receive permission from that state to visit the country and to conduct on-site investigations. The impossibility of conducting fact- finding in the absence of state permission became abundantly clear when the Special Rapporteur on the Occupied Palestinian Territories entered Israel without its permission, upon which he was de- tained and subsequently expelled.
A number of states consider it in their own interest to collaborate with fact-finding missions or to take a principled standpoint in favor of collaboration. Some have even extended a so-called ‘standing in- vitation’, which implies that a request by a mandate- holder to visit the country will always be accepted. However, despite a standing invitation, Iran has de- nied any access since 2005. Other states, such as North Korea and Zimbabwe, categorically refuse access and ignore communications, while other state responses depend on the circumstances. In some cases states are afraid that denial of access will be interpreted as a guilty plea or that it might have negative consequences for the foreign aid that they depend on. At times states simply give in to long-term pressure by other states.
ILSA Quarterly » volume 20 » issue 3 » February 2012
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