Commissions of Inquiry, the Human Rights Council and the ICC

Colum Lynch reports that the United States is ready to support a “commission of inquiry” into alleged crimes against humanity in Burma.  The move, he says, comes as the Obama administration recognizes that a policy of engagement is not working. 

Make no mistake: this decision could be the first step in a long process that might eventually lead to the indictment of Than Shwe and the Burmese leadership for crimes against humanity. But beyond Burma, it could also set a new standard for how the United States can constructively help direct the work product of the International Criminal Court, even though the United States remains outside its formal structures.

To understand what “commissions of inquiry” might have to do with the ICC, consider the case of Sudan.  In 2004, as news reports emerged of mass atrocity in Darfur, Secretary General Kofi Annan appointed a commission of inquiry led by the Italian jurist Antonio Cassese to investigate alleged war crimes in Darfur. When the Cassese report was presented to the Security Council in early 2005, it contained a number of damning allegations of war crimes, including a classified annex with the names of individuals suspected of having committed war crimes. Crucially, the report recommended that the Security Council authorize the International Criminal Court to investigate the alleged crimes.

The Bush administration did not much like the ICC, but it became politically difficult to ignore the report’s central conclusions about accountability. The non ICC members of the P-5 (China, Russia and the USA) abstained and let the measure pass. Like Sudan, Burma is not a member of the International Criminal Court.  The only way that the ICC’s jurisdiction could extend to Burma is if the Security Council similarly authorizes the ICC to open an investigation there. 

The first step of this process, though, is getting the investigation off the ground.  The most obvious way to secure international support for a commission of inquiry is through the Human Rights Council, which the Obama administration joined last year.  The Human Rights Council routinely appoints human rights investigators to look into alleged rights violations. Sometimes these investigations recommend the ICC intervene to provide accountability for war crimes. The most high profile of these investigations, the Goldstone inquiry into alleged war crimes in Israel and Gaza, recommended that the Security Council consider giving the ICC jurisdiction in Israel and Gaza should local judicial mechanisms prove unsatisfactory. That was obviously a non-starter for the United States–but it does go to show how the Human Rights Council can instigate an investigation, the conclusion of which includes a recommendation for ICC referral by the Security Council. 

Should the United States successfully press the Human Rights Council to appoint a commission of inquiry for Burma, it is not  unreasonable to expect 1) that after the inquiry, the commission recommends the Security Council refer the situation to the ICC; 2) that the Security Council obliges. (Remember: China is also an ally and trading partner of Sudan and Beijing did not offer a veto then.)

This kind of ICC bank shot is a good example of how the United States can constructively interact with institutions or treaty regimes that it may support, but in all likelihood will never formally join.  These kinds of strategies are going to become increasingly relevant; treaties that were once considered uncontroversial, like the CEDAW and Law of the Seas, have in today’s political climate become suddenly contentious. Unless something radically changes in the Senate, the United States will have to navigate a future in which it is in permanent observer status to these conventions, treaties and institutions.   Administrations that are supportive of these institutions in principal (as the Obama administration is with the ICC) will have to find a way to influence these structures from the sidelines.

It seems the Obama administration may have stumbled onto one way to potentially engage the ICC. Let us see where this leads.