Taking the (International) Rule of Law Seriously: Legality and legitimacy in United Nations ad hoc commissions of inquiry.

摘要

Contemporary ad hoc United Nations Commissions of Inquiry (UN COIs) operate during or in the aftermath of many of the world's worst conflicts. Over the years they have met with mixed success, and a good deal of criticism, yet are thought to provide a vital and unique benefit. Today, that benefit is seen either as the promotion of accountability for criminal wrongdoing, where quasi-criminal inquiries investigate whether war crimes, crimes against humanity, or genocide has taken place; or, it is seen as laying the foundation for transitional justice reforms, whereby UN COIs map the social, political, legal and even economic landscape and provide "holistic" transitional justice recommendations. Yet despite these lofty goals and the perceived importance of UN COIs, there is very little research on UN COIs. That which does exist tends not to question their purposes or seriously interrogate their procedures; instead, it focuses on incremental measures to improve UN COIs' processes and legal analyses. This dissertation seeks to provide the basis of a theoretical, principled approach to the creation and work of UN COIs, a normative platform upon which human rights monitoring methods can expand and a continuity of investigatory practice can develop. By treating UN COIs as legal bodies with legal obligations, this dissertation draws on Fuller's conception of legality and the theory of "interactional law-making" to question the very purposes for which UN COIs are seen to exist and the procedures by which they operate. It finds that neither the holistic transitional justice purpose nor the quasi- criminal purpose is legally or practically tenable. Instead, UN COIs should operate as post-conflict bodies, and delve deeply into a relatively narrow aspect of a systemic problem. A commitment to legality and interactional law-making can also offer a curative to the most salient criticisms of UN COI procedures by improving the credibility, reliability, and impartiality -- the legitimacy -- of their operations and how they are created.