International Commissions of Inquiry and the North Sea Incident: A Model for a MH17 Tribunal?

Abstract

After spending more than a century on the fringes of international legal discourse, international commissions of inquiry have recently begun to feature more prominently in academic and political debate. Their embrace of international criminal law has prompted a debate whether they are stepping outside their traditional mandate as fact-finding bodies. As this article will show, this dispute misunderstands the Hague tradition and ignores the historical role of early commissions of inquiry in shaping our ideas of holding perpetrators of mass atrocities to account or of letting international bodies decide the responsibility and guilt of individuals involved in controversial incidents. While being almost completely unknown today, the North Sea Incident Commission of 1905 had explicit authority to decide upon the responsibility, blame and punishment for an incident in which the Russian Navy had killed and injured British fishermen while engaged in operations linked to the Russo-Japanese war. It pioneered an adversarial model of a commission of inquiry that could serve as a useful model for an investigation into the downing of flight MH17 over eastern Ukraine in July 2014 since it meets all Russian objections against the UN Security Council draft that was vetoed in July 2015.

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