A.  Introduction

1 ‘Fact-finding’ or ‘inquiry’ is a recognized form of international dispute settlement through the process of elucidating facts, given that it is the varied perceptions of these facts that often give rise to the dispute in the first place. The fact-finding process is frequently employed in addition to other diplomatic dispute resolution means such as negotiation, mediation, good offices, and conciliation as well as in arbitration and international civil litigation (Peaceful Settlement of International Disputes). Fact-finding is a process distinct from other forms of dispute settlement in the sense that it is aimed primarily at clarifying the disputed facts through impartial investigation, which would then facilitate the parties’ objective of identifying the final solution to the dispute.

2  The fact-finding process may involve an impartial and neutral body carrying out the inquiry—either a body appointed ad hoc or a standing panel available at every stage of a dispute—or a joint body consisting of the representatives of the disputing parties which conducts the fact-finding activities. Additionally, the same body charged with the establishment of the facts may be required by the parties to evaluate the facts, including a legal assessment of responsibility and relevant recommendations for the future resolution of the dispute. An example of such a model quasi-judicial and quasi-mediatory body is the International Commission of Inquiry in response to the Dogger Bank Incident (1904) where the mandate enshrined both investigative and judicial functions.

B.  Historical Development

3  The Dogger Bank International Commission of Inquiry was set up in accordance with Arts 9 to 14 1899 International Convention for the Pacific Settlement of International Disputes (‘1899 Hague Convention I’) in order to elucidate ‘by means of an impartial and conscientious investigation the questions of facts connected with the incident’ (International Commission of Inquiry between Great Britain and Russia Arising out of the North Sea Incident [(1908) 2 AJIL 929–30]; Hague Conventions Commissions of Inquiry). The 1899 Hague Convention I, together with the subsequent 1907 Convention for the Pacific Settlement of International Disputes (‘1907 Hague Convention I’)—adopted during the second of the Hague Peace Conferences (1899 and 1907)—were the first treaties formally to regulate issues relating to the peaceful settlement of international disputes and were created in relation to an earlier incident involving the sinking of the USS Maine in Havana Harbor in 1898. This procedure displayed many similarities to arbitration procedures, providing, however, fewer juridical consequences and maintaining its independence from other methods of dispute settlement.

4  Both 1899 and 1907 Hague Conventions I required in their respective Art. 9 that the International Commission of Inquiry should be instituted in cases involving differences of opinion on the facts and ‘involving neither honor nor vital interests’ of the parties in order to facilitate a solution to these cases. Furthermore, Art. 14 1899 Hague Convention I, as repeated in Art. 35 1907 Hague Convention I, strengthened this understanding of the essential purpose of commissions of inquiry by stipulating that the commissions’ final reports were not to be regarded as arbitral awards (Arbitral Award). In contrast to the earlier 1899 Hague Convention I, the 1907 Hague Convention I was equipped with a much more elaborate and detailed set of procedural regulations (see Arts 11–36 1907 Hague Convention I) establishing two main stages of the proceedings: oral and written (optional), fully conducted by the elected president of the commission. Agents of the parties could participate in the oral part of the proceedings without, however, taking an active role in examining the experts and witnesses, as the president of the commission was the only one designated to carry out the interviews. However, during the written phase of the proceedings, the parties, through their agents, were allowed to submit their statements to the commission and to the adversary party. In essence, the framework for commissions of inquiry was designed to elucidate the facts sufficiently in order to facilitate a dispute resolution. As the underlying dispute often involved more than differences about the facts, the inquiries became more mediatory in nature and involved the legal findings as well as recommendations for dispute resolution mechanisms. Significantly, early cases including The Tavignano, Camouna and Gaulois Cases (France/Italy) (1912), settled out of court between France and Italy (JB Scott (ed) The Hague Court Reports [OUP Oxford 2016] 438), already show a notable departure from the procedure of the 1907 Hague Convention I. Furthermore, the Dogger Bank and Red Crusader Incident (1961) inquiries significantly dealt with sensitive matters of national interests, de facto expanding the remit of inquiries envisaged in both Hague Conventions.

5  In recent years, parties could also resort to the Optional Rules for Fact-Finding Commissions of Inquiry (‘PCA Optional Rules’), which provide a self-contained procedural framework for commissions of inquiry. These rules, considered as an alternative option rather than a supplement to earlier regulations, were prepared as a part of the set of optional rules of the Permanent Court of Arbitration (PCA) and in relation to the non-mandatory procedural provisions of the 1907 Hague Convention I. While the latter gave a significant procedural role to the commission, the PCA Optional Rules allowed for more proactive participation of the agents of the parties during all the stages of the proceedings, including the oral stage.

6  The further resort to the fact-finding method of dispute settlement was also reflected in a number of multilateral treaties largely inspired by the 1907 Hague Convention I with one innovation: a permanently established body for inquiry instead of an ad hoc one. Such a solution was first introduced in the Taft Arbitration Treaties (1911) and later in the Bryan Treaties (1913–14) and inspired a number of other agreements. The Treaty to Avoid or Prevent Conflicts between the American States of 1923, also known as the Gondra Treaty, negotiated at the Fifth International Conference of American States, was solely dedicated to the establishment of a permanent Commission of Inquiry to resolve ‘all controversies … which it has been impossible to settle through diplomatic channels, or to submit to arbitration in accordance with existing treaties’ (Art. I Gondra Treaty). Similar provisions were enshrined in a tripartite agreement among the ABC Powers—Argentina, Brazil, and Chile—in 1915.

7  The Final Protocol of the Locarno Conference of 16 October 1925 (54 LNTS 297), containing seven mutually interdependent agreements aiming to secure the post-World War I territorial settlement, initiated this process. The Locarno Treaties (1925) introduced a number of bilateral arbitration procedures between Germany and, respectively, Belgium (Annex B), France (Annex C), Poland (Annex D), and Czechoslovakia (Annex E) involving a possible settlement procedure before the Permanent Conciliation Commission (‘PCC’). Article 8 Arbitration Convention between Germany and Belgium, reproduced in the other mentioned mutual agreements, indicated that the PCC’s task was to elucidate upon the questions in dispute by gathering all the necessary information to that purpose by means of inquiry. The Locarno Treaties enshrined a further reference to the procedure laid down by the 1907 Hague Convention I as well as Art. 16 Covenant of the League of Nations under which any member of the League of Nations could sever any trade or financial relations with any other member which resorted to war in disregard of the provisions of Arts 12, 15, and 19 League Covenant. Article 12 League Covenant obligated members of the League of Nations to adhere to arbitration, judicial settlement, or inquiry in situations likely to result in armed conflict (Armed Conflict, International; Peace, Proposals for the Preservation of). Article 15 League Covenant further elaborated on the inquiry method. For example, the League of Nations procedure was utilized in the Åland Island inquiry (1921) (Åland Islands) and in inquiries related to the Sino-Japanese conflict (1931–35).

8  Interestingly, this rise in multilateral treaty-based provisions for inquiry did not actually generate a corresponding increase in the practical use of the established fact-finding bodies. The Bryan Treaties were, for instance, used only once. The Bryan-Suarez Mujica Treaty (1914) was invoked in the Decision with regard to the Dispute concerning Responsibility for the Deaths of Letelier and Moffitt between the United States of America and Chile, as discussed below.

C.  Fact-Finding under the UN Charter

D.  Fact-Finding as a Tool of the Security Council, the General Assembly, and Human Rights Bodies

15  The UN Security Council, the UN General Assembly, and the UN Secretary-General have frequently used the inquiry procedure to mandate numerous committees, commissions, missions, or panels to investigate alleged violations of human rights, circumstances of deaths or assassinations of individuals, or country-focused inquiries, including frontier incidents. An early record of these uses is listed in the UN Secretary-General studies on fact-finding methods as described above (see also Bar-Yaacov 6–8, 89–197). The International Court of Justice (ICJ) recognized the value of such fact-finding activities on behalf of the UN Secretary-General by using them as evidence (International Courts and Tribunals, Evidence; Evidence: International Court of Justice [ICJ]) in its more recent Israeli Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory). Furthermore, extensive oral testimonies and documentary evidence were produced in the course of the fact-finding part of the hearings in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case (Bosnia and Herzegovina v Serbia and Montenegro) ([2007] ICJ Rep 43, 91).

16  It was not until 22 March 1979 that the UN Security Council set up the first commission of inquiry. Based on Resolution 446 (1979), the commission was asked to investigate the situation in Jerusalem in order to determine whether the Israeli settlement policies were in accordance with international law (see also Israel, Occupied Territories). Resolution 496 (1981) requested a commission of inquiry consisting of three UN Security Council members to look into the origins and the background of mercenary aggression in Seychelles in 1981. This was followed by Resolution 780 (1992) and Resolution 935 (1994) creating commissions of experts to investigate situations in the former Yugoslavia (see also Yugoslavia, Dissolution of) and Rwanda, respectively. The Security Council established a commission of inquiry into the Burundi genocide in 1995 (UNSC Res 1012 [1995]); into events in the Jenin Palestinian refugee camp in 2002 (UNSC Res 1405 [2002]); and into violations of international law in Darfur province in Sudan two years later (UNSC Res 1564 [2004]). Similarly, the UN Security Council also requested peacekeeping forces to conduct fact-finding investigations in situations of atrocities, eg the situation in Liberia (UNSC Res 866 [1993]) and the situation in Sierra Leone (UNSC Res 1181 [1998]). Noteworthy contemporary practice indicates a reluctance of the UN Security Council to make use of Art. 34 as it tends to delegate establishment of commissions of inquiry to the Secretary-General.

17  Relying on its implied investigative powers and in line with Arts 10–12, 14, and 22 UN Charter, the General Assembly instigated investigations into multiple and diverse incidents and situations as early as the 1950s and 1960s. Examples of such inquiries included apartheid in South Africa (UNGA Res 616 A (VII) [1952]) and the deaths of Lumumba (UNGA Res 1601 (VX)[1961]), Rwagasore (UNGA Res 1627 (XVI) [1961]), and Hammarskjöld (UNGA Res 1628 (XVI) [1961]).

18  In the early 1980s, the UN General Assembly called upon the UN Secretary-General to employ fact-finding missions as a tool to examine the US allegations of chemical warfare in Afghanistan and Southeast Asia (UNGA Res 35/144C [1980]; followed by UNGA Res 37/98D [1982]). The UN Secretary-General used fact-finding investigations periodically throughout the 1980s and mid-1990s to assess allegations, for instance stemming from the conflicts between Iran and Iraq (eg UNSC Res 598 [1987]) and former Yugoslavia.

19  The apparent reluctance to establish any fact-finding missions combined with the evident lack of intention to follow up actively on the findings of the inquiry teams resulted in substantial criticism of Security Council fact-finding empowerment. Commentators pointed out not only the meager financial support for the conduct of such procedures, but also the questionable quality of the final reports. The most disconcerting point appears to be a noted lack of impact on the Security Council’s decision-making processes even in cases where excellent studies were provided by the fact-finding experts (International Organizations or Institutions, Decision-Making Process). The only positive example in that respect is the Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General ([25 January 2005] UN Doc S/2005/60 Annex), which contained the suggestion that the Security Council refer the case to the International Criminal Court (ICC) (Referral by the United Nations Security Council: International Criminal Court [ICC]). The Security Council followed up on this recommendation, clearly dismissing the US suggestion to create a separate tribunal for Darfur.

20  Similar criticisms are voiced in relation to the inquiries conducted on behalf of the UN General Assembly and the various UN human rights bodies. The continual lack of resources, both logistical and financial, as well as the limitation of the mandates, contribute to the overall generally negative assessment of the practice of UN bodies in the field. This continues to be an area of concern with the criticism over the setup and findings of the Report of the United Nations Fact-Finding Mission on the Gaza Conflict ([25 September 2009] UN Doc A/HRC/12/48), as well as of the earlier Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council Resolution S-2/1 ([23 November 2006] UN Doc A/HRC/3/2), both commissioned by the UN Human Rights Council (United Nations Commission on Human Rights/United Nations Human Rights Council).

E.  Assessment

21  Fact-finding procedures employed initially in relation to frontier disputes or to maritime incidents—eg the above-mentioned Dogger Bank Incident and the Red Crusader Incident—have been steadily on the decline in the past decades. Despite the noted encouragement coming from the UN General Assembly, States have been reluctant to make use of the fact-finding method of dispute resolution. Generally, international organizations have positively reappraised and utilized the inquiry procedures in a variety of situations, though in a different and more political context, and with varied results. In particular, the UN has found it an especially useful diplomatic tool in preventing international disputes in the field of the maintenance of international peace and security (Conflict Prevention; Diplomacy). Moreover, Art. 90 Geneva Conventions Additional Protocol I (1977) (1125 UNTS 3) relating to the protection of victims in international armed conflicts provides for the establishment of the permanent International (Humanitarian) Fact-Finding Commission at the disposal of parties to an armed conflict in order to investigate serious violations of international humanitarian law, such as crimes against humanity, genocide, and war crimes. The commission, which is also competent to use good offices to restore respect for compliance with law, has been operational since 1991 in theory, and 72 States have recognized its competence so far. However, the necessity for the consent of the States involved to employ the services of the commission may have hampered its use as the commission has only once since its inception been engaged by the Organization for Security and Co-operation in Europe (OSCE) to investigate a 2017 incident involving destruction of an OSCE vehicle and the death of an OSCE paramedic.

22  On the other hand, mandatory use of fact-finding in cases of disputes concerning the interpretation or application of a treaty was introduced in Art. 33 Convention on the Law of the Non-Navigational Uses of International Watercourses (International Watercourses). Corresponding provisions on special arbitration can also be found in Art. 5 Annex VIII United Nations Convention on the Law of the Sea (Law of the Sea; Law of the Sea, Settlement of Disputes; Annex VIII Special Arbitration: United Nations Convention on the Law of the Sea [UNCLOS]).

23  Furthermore, as recent practice shows, fact-finding as a method of dispute settlement is often used as an alternative to adjudication. It is made use of in the international commercial arbitration system as incorporated in multilateral trade and investment treaties (Commercial Arbitration, International). Since the 1978 enactment of the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes (‘ICSID Additional Facility Rules’, current version from 2006), the International Centre for Settlement of Investment Disputes (ICSID)—under the auspices of the World Bank (World Bank Group)—has been authorized to institute fact-finding proceedings sensu stricto, ie to examine and report only with regard to disputed facts (Art. 15 Schedule A Fact-Finding [Additional Facility] Rules). Settlement of disputes in the World Trade Organization (WTO) system also uses regulations allowing for the inquiry procedure, in particular Art. 15 Understanding on Rules and Procedures Governing the Settlement of Disputes ([adopted 15 April 1994, entered into force 1 January 1995] 1869 UNTS 401), which provides a panel procedure in the interim review stage (Interim Review: Dispute Settlement System of the World Trade Organization [WTO]; Panel: Dispute Settlement System of the World Trade Organization [WTO]; World Trade Organization, Dispute Settlement; World Trade Organization, Enforcement System).

24  The employment of the fact-finding procedure in favour of the judicial settlement of international disputes is very well developed. It is frequently used in commercial arbitration. However, this appears to be rather a spectacular exception in the otherwise declining practice between States. Recent sources mention the Letelier and Moffitt Claim from 1989 as a contemporary use of bilateral treaties to that effect. In this case, the US invoked the 1914 agreement with Chile to investigate the factual situation related to the deaths of the former Chilean Foreign Minister and his colleague from the US, who were assassinated in Washington, DC in September 1976. As in the Red Crusader Incident, the commission of inquiry’s functions were more of a judicial nature—mandated to decide on matters of law as well as the factual situation—and its final decision was accepted as binding settlement of the dispute and a basis for the compensation negotiations.

25  In recent years, however, the use of fact-finding procedures has developed most significantly in the area of human rights. Of particular note are the commissions of inquiry instituted by the International Labour Organization (ILO). Furthermore, as shown above, the UN Security Council, the UN General Assembly, and human rights institutions have employed the means of fact-finding as a preventive measure to serve predominantly political aims rather than actually to undertake any comprehensive investigations. To facilitate such practices, the UN Secretary-General compiled the Draft Model of Fact-Finding Procedure for UN Bodies Dealing with Violations of Human Rights, which was adopted by the UN Economic and Social Council (United Nations, Economic and Social Council [ECOSOC]) in 1974 and was further updated in 1998 (UN Commission on Human Rights, ‘Terms of Reference for Fact-Finding Missions by Special Rapporteurs/Representatives of the Commission on Human Rights’). Numerous Commissions of Inquiry created under the auspices of the UN Human Rights Council in recent years have been increasingly mandated not so much to establish the presence of violations but rather to find the evidence and alleged perpetrators of the violations; this change signals a radical shift from fact-finding to accountability-based inquiries. Examples of such inquires include: the Commission of Inquiry in Syria (UN HRCouncil Resolution S-17/1 [2011]), the Myanmar Independent Fact-Finding Commission (UN HRCouncil ‘Situation of Human Rights in Myanmar’ [2017] and UN HRCouncil ‘Report of the Independent International Fact-Finding Mission on Myanmar’ [2018]), the Commission of Inquiry on Libya (UN HRCouncil ‘Report of the International Commission of Inquiry on Libya’ [2014]), and the Yemen Group of Eminent Experts (UN HRCouncil Resolution 36/31 ‘Human Rights, Technical Assistance and Capacity-Building in Yemen’). A similar approach has been employed in the UN Security Council–created investigations in the Central African Republic (UNSC Res 2127 (2013)) and the investigations established by the General Assembly in relation to the International, Impartial and Independent Mechanism to assist in the investigation of violations in Syria (UNGA Res 71/248). It is noteworthy that this trend has been criticized for leading to prejudicial and inaccurate findings (see eg the investigation into Israeli attacks on the flotilla of ships carrying humanitarian assistance [UN HRCouncil ‘Report of the International Fact-finding Mission to Investigate Violations of International Law, including International Humanitarian and Human Rights Law, resulting from the Israeli Attacks on the Flotilla of Ships carrying Humanitarian Assistance (27 September 2010) UN Doc A/HRC/15/21]).

26  Recent developments show significant progress towards joint reporting, involving a number of Special Rapporteurs of Human Rights Bodies assessing all possible aspects of the investigated situation, eg in the report on the Situation of Detainees at Guantánamo Bay, conducted by the Chair of the Working Group on Arbitrary Detention and four other special rapporteurs ([27 February 2006] UN Doc E/CN.4/2006/120), or the Combined Report on the Human Rights Situation in Palestine and other Occupied Arab Territories ([20 March 2009] UN Doc A/HRC/10/22).

27  Similarly, on the regional level, fact-finding is regarded as a useful diplomatic tool by international organizations. The European Commission of Human Rights and the European Court of Human Rights (ECtHR) had already conducted a number of judicial investigations including hearings of witness and on-the-spot inquiries in the 1970s (eg in the inter-State case Ireland v United Kingdom (ECtHR) Series A No 25, as well as in the numerous cases brought by individuals against Turkey in the mid-1990s) (see Fact-Finding: European Court of Human Rights [ECtHR]). The Inter-American Commission on Human Rights (IACommHR) has developed a comprehensive set of procedures for on-site fact-finding missions, while the OSCE—formerly known as the Conference on Security and Co-operation in Europe—had already introduced the special conditions of fact-finding and rapporteur missions as tools for crisis management and conflict prevention in July 1992, in the Helsinki Summit document ‘The Challenges of Change’ ([adopted 10 July 1992] (1992) 31 ILM 1385). In order to investigate the causes and the course of the 2008 conflict in Georgia, the European Union Council of Ministers set up an Independent International Fact-Finding Mission on the Conflict in Georgia (Council Decision 2008/901/CFSP of 2 December 2008 [2008] OJ L323/66, with reference to then Arts 13 (3) and 23 (1) Treaty on European Union; Arts 26 (3) and 31 (1) TEU of today [Consolidated Version (2016) OJ C202/13]).

28  Means of inquiry are equally frequently employed by non-governmental organizations such as the International Law Association (ILA) (see ‘The Belgrade Minimum Rules of Procedure for International Human Rights Fact-Finding Missions’ (1981) 75 AJIL 163), the International Bar Association (IBA) (see the ‘IBA Rules on the Taking of Evidence in International Arbitration’ [most recent version adopted 17 December 2020; see also Rules on the Taking of Evidence in International Arbitration (2010): International Bar Association (IBA)] and the 2009 ‘Guidelines on International Human Rights Fact-Finding Visits and Reports’ [‘The Lund-London Guidelines’]), and the International Commission of Jurists (ICJ).