Untitled - International Commission of Jurists

competence. Their findings must be made public in order to empower citizens to
demand justice and reparations, including the right to understand the underlying
causes and ensure non-repetition.
4. Composition
It follows that a mandate structured to provide independence to a commission of
inquiry requires a selection process that ensures capacity and willingness to act
independently and impartially. As with the judiciary, but particularly so in the case of
commissions of inquiry due to public spotlight under which they typically carry out
their inquiries, the selection process is critical. The subsequent independence of
commissioners needs to be protected through their irremovability (except for reasons
of incompetence or incapacity) and through privileges and immunities necessary for
their protection. Representation of women and other appropriate groups is also
recommended explicitly under international standards. 408
As noted above, the President possesses the authority under the 1948 COI Act to
remove commissioners at any time without review. Notwithstanding this lack of
structural protection of independence, the commissioners appointed to the bodies
described above appeared to have the required technical expertise and experience. Of
greater concern in some cases was the independence and impartiality of
commissioners, as for example, in the case of the Batalanda Commission. A more
contested question concerned the degree of their commitment to questions of human
rights accountability. The presumption that lawyers and retired judges who were
primarily appointed to these Commissions would automatically possess the requisite
commitment to the rule of law and human rights was not always well-founded in
reality.
In addition, the predominance of commissioners with legal training has resulted in a
somewhat unfortunate tendency on the most part to convert fact-finding inquiries into
proceedings with the character and flavour of legal hearings rather than as fact-finding
investigations. This had its own peculiarly paradoxical effect. Even though these
commission inquiries conformed in many respects to legal proceedings, the
commission findings, proceedings, and material collected remained largely irrelevant
to all the later prosecutions in courts of law. Commission documents were not used
even to a limited extent in regard to setting out the factual context to a particular
violation of the law under scrutiny by the courts. At the same time, some
commissions, while taking on the air of legal proceedings, were insufficiently
cautious about naming alleged perpetrators without providing an opportunity for a
public defence which illustrated a lack of fairness that was exacerbated by the absence
of follow-up prosecutions. Neither truth nor justice was served by the outcome.
Gender representation in many of these Commissions was also inadequate. Where the
1994/1998 Disappearances Commissions were concerned, there was an element of
gender as well as minority representation in the composition. However, these
Commissions remained the exception in this regard.
408 Principle 7, Updated Set of principles for the protection and promotion of human rights through
action to combat impunity, E/CN.4/2005/102/Add.1, 08.02.2005.
117