Sharing the Law: The Appeal of International Criminal Law for International Commissions of Inquiry
published as: Larissa van den Herik and Catherine Harwood, 'Commissions of Inquiry and the Charm of International Criminal Law: Between Transactional and Authoritative Approaches', in Philip Alston and Sarah Knuckey (eds), The Transformation of Human Rights Fact-Finding (Oxford: OUP, 2016) 233-254
Grotius Centre Working Paper No. 2014/016-ICL
22 Pages Posted: 30 Jan 2014 Last revised: 16 Oct 2017
Date Written: January 29, 2014
Although international criminal law is the traditional language of international criminal tribunals, international commissions of inquiry and other international fact-finders are increasingly called upon to determine whether international crimes have been committed in a situation of armed conflict or distress. Questions have been raised regarding possibilities of evidence-sharing and other forms of cooperation between commissions of inquiry and criminal prosecutors. Rather than pursuing questions related to the sharing of facts, this Chapter analyses the phenomenon of sharing the law. It asks what the consequences are of the utilisation of the same body of law by different entities for different purposes. Do the different underlying purposes that inform the mandates of commissions of inquiry permit more flexible interpretations of international criminal law? And if commissions of inquiry indeed interpret international criminal law in a more lenient fashion, might this undermine the authority and credibility of this body of law? This Chapter grapples with these pressing questions by reference to the argument previously made in the R2P context that there may be grounds for legitimate difference in the application of the same concept when utilized for preventive or punitive purposes. The Chapter emphasizes the need for appreciation of the distinct settings in which international criminal law is invoked, and cautions that findings and interpretations from commissions of inquiry might only be transposed to the context of a criminal trial with a certain care and diligence.
Keywords: international criminal law, fact-finding, Responsibility to Protect, international commissions of inquiry
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