UN Fact-Finding
in Rwanda and crimes against humanity, but not genocide, had been committed in Darfur).
The Working Group of Experts that investigated the apartheid regime in South Africa was asked to draw up a list of individuals who were considered to be responsible for human rights violations. This list was published and updated annually for several years. The fact-finding tool was thus used as a way of naming and shaming, with the purpose of pres- suring the apartheid regime into changing their policies. In more or less the last two decades, findings on culpability have not only been used to hold people politically accountable, but also to find individuals criminally responsible.
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Fact-finding reports may recommend criminal pros- ecution of certain perpetrators. The possibilities to do so at the international level have increased over the last two decades. Some fact-finding missions, such as to the Former Yugoslavia and to Rwanda have formed the basis for the establishment of the respective international criminal tribunals. Ad- ditionally, with the establishment of the Interna- tional Criminal Court (ICC), it is now possible that fact-finding reports form the basis for a referral of a case by the Security Council to the ICC Prosecu- tor, or for the initiation of an investigation by the Prosecutor on his own behalf.
This relationship between human rights fact-find- ing and investigations into criminal responsibil- ity has been little analyzed, but insofar that it has been discussed, opinions range from the need for more collaboration and coordination between UN and prosecutorial fact-finding to a warning that mandate-holders should not draw any conclusions on criminal responsibility as it could have a polar- izing effect between parties in conflict.
Given the non-judicial character of fact-finding mis- sions the question is justified whether the man- date-holder should at all be authorized to draw conclusions on criminal responsibility. Do the current methods used in fact-finding provide suf- ficient procedural safeguards to draw such conclu-
sions and to use the information gathered through human rights fact-finding in criminal proceedings? And, if there is a desire or need for a stronger con- nection between human rights fact-finding and criminal prosecutions, how should that connection develop? Improving and standardizing procedural methods could possibly contribute to justifying criminal implications of fact-finding missions.1
Follow-Up on Fact-Finding Reports
The previous discussion leads to the question of how the UN should respond to the conclusions and recommendations (on criminal responsibility and otherwise) in the fact-finding reports. Cur- rently, fact-finding reports will first be discussed in the organ that mandated the mission. Usually, the report will then be taken note of and adopted through a resolution. Many of the recommenda- tions are directed at the concerning government and other relevant national actors, while some may include recommendations regarding actions to be taken by UN organs.
The follow-up by the UN on reports and recom- mendations is clearly not a purely legal decision. In the case of a massacre of demonstrators in Guinea, the Security Council did not even discuss the recommendation to refer cases to the ICC, while in response to atrocities in Darfur it did refer cases. Both in the case of Guinea and of Darfur, the legal conclusions were that crimes against hu- manity had been committed. It is also difficult to base decisions on comparable legal norms when procedural standards are absent.
As a result, follow-up on fact-finding reports is sub- ject to a political process, which does not always make it clear when the UN follows up on recom- mendations, or when it responds at all, and what these decisions are based on. It could be argued that, especially in the case of human rights viola- tions that amount to international crimes such as crimes against humanity and genocide, the UN has a responsibility to respond, or in any case to respond in a similar way in comparable cases.
ILSA Quarterly » volume 20 » issue 3 » February 2012
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