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The Transformation of Human Rights Fact-Finding$
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Philip Alston and Sarah Knuckey

Print publication date: 2016

Print ISBN-13: 9780190239480

Published to Oxford Scholarship Online: January 2016

DOI: 10.1093/acprof:oso/9780190239480.001.0001

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Commissions of Inquiry and the Charm of International Criminal Law

Commissions of Inquiry and the Charm of International Criminal Law

Between Transactional and Authoritative Approaches

(p.233) 12. Commissions of Inquiry and the Charm of International Criminal Law
The Transformation of Human Rights Fact-Finding

Larissa van den Herik

Catherine Harwood

Oxford University Press

This chapter analyzes the consequences of the same body of law being utilized by different entities for different purposes. It specifically compares the use of international criminal law by international criminal courts and by human rights commissions of inquiry. The chapter first situates modern human rights commissions of inquiry within the broader institutional fact-finding framework of the UN and examines how these make use of international criminal law. The approaches of various commissions are then compared and contrasted with judicial approaches, especially in terms of their interpretation and application of international criminal law. The slightly divergent approaches of commissions of inquiry are justified through the idea of “legitimate difference.” Concretely, these justifications relate to the distinct mandates and functions of the commissions. The chapter concludes with some thoughts on the ramifications of these divergences. It suggests that criminal courts should not automatically give precedential value to commission findings.

Keywords:   international criminal law, legitimate difference, distinctiveness of mandates, precedential value, commission findings

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