Human Rights Fact-Finding and International Criminal Proceedings: Towards a Polycentric Model of Interaction
Grotius Centre Working Paper 2014/017-ICL
26 Pages Posted: 1 Feb 2014
Date Written: January 31, 2014
The interaction between fact-finding bodies and international criminal courts and tribunals has been subject to growing attention in past decades. There is a visible trend in UN practice to charge fact-finding missions with mandates involving (quasi-) criminal investigation or the determination of accountability of specific actors (e.g., individuals or groups) for human rights violations. In existing discourse, it is frequently assumed that this increased focus on criminalization supports the prevention or prosecution of atrocity crimes. This chapter re-visits this claim. It argues that the impact and use of the findings of fact-finding bodies for criminal investigations and prosecutions depends on a number of key parameters, namely (i) the nature of fact-finding entities, (ii) the relevant addressee in the criminal process (e.g., Prosecution, Defence, Judges), (iii) the stage of proceedings, (iv) the type of decision, and (v) the nature of evidence. These parameters provide a basis for a more nuanced assessment of institutional interaction that takes into account the different ‘centres of gravity’ of fact-finding and criminal proceedings. Based on analysis of these five parameters, and relevant practice and jurisprudence, it appears misleading to frame the link between external fact-finding and international criminal justice in terms of a natural continuum. It is more appropriate to conceptualize interaction based on a sliding scale. Materials, documents and testimony provided by fact-finding bodies have undisputed relevance to ‘context’-related evidence. They may also support other functions in the criminal process. But they are by no means determinative for the outcome of investigations and prosecutions.
Keywords: fact finding, ICC, human rights, due process, evidence
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