Operations of the UN Commission of Inquiry (COI) and North Korean Human Rights
1. Legal Basis of Establishment
After the establishment of the International Criminal Court through the Rome Statute on the 1st of July, 2002, the Commission of Inquiry system related to human rights issues could be established through UN mechanisms on broad legal grounds.
First, Commissions of Inquiry can be established through UN Security Council resolutions. The typical case is that of the Commission of Inquiry established for the Darfur region of the Sudan. A Commission of Inquiry was established in order to find a solution to the Darfur situation by UN Security Council Resolution 1564 on the 18th of September, 2004.
Second, Commissions of Inquiry can be established through UN Human Rights Council resolutions. Today, the general trend has been for Commissions of Inquiry to be established through the UNHRC. Examples include Libya, Syria, Lebanon and Côte d´Ivoire. The UNHRC adopts resolutions either with or without voting. The resolutions to establish Commissions of Inquiry for Syria and Lebanon were adopted through a vote, while the resolutions to establish Commissions of Inquiry for Libya and Côte d´Ivoire were adopted without a vote.
Third, Commissions of Inquiry can be established via request from the UN Secretary General to the High Commissioner for Human Rights. The UN Secretary General made a formal request to the High Commissioner for Human Rights to establish a Commission on the 12th of June, 2006. The decision to establish a Commission of Inquiry for East Timor was
transmitted to the UN Security Council on the 13th of June, 2006, and the Security Council formally expressed a welcoming position towards the establishment of a COI via Resolution 1690 adopted on the 20th of June, 2006. In this way, UN Security Council confirms the legitimacy of Commissions of Inquiry established through this process.
As can be seen above in the East Timor precedent, there have been examples of individual countries requesting the formation of a COI first due to political necessity. On the 8th of June, 2006, the East Timorese Foreign Minister sent written requests to the UN Secretary General requesting the formation of an independent Commission of Inquiry to investigate incidents occurring on the 28th of April and 23rd, 24th and 25th of May as well as the incidents and issues relating to the crisis situation in that country. As noted above, the UN Secretary General made the decision to establish a Commission of Inquiry in response to this request.
The Commissions of Inquiry established and operating so far have been composed of between 3 and 5 members, but most Commissions of Inquiry are composed of 3 members. In addition, the Office of the United Nations High Commissioner for Human Rights contributes to the personnel and budget requirements of Commissions of Inquiry in order to provide professional support for the activities of COI members. With the adoption of the COI system, the relationship with existing UN human rights monitoring bodies varies on a case-by-case basis. As mentioned above, the UN Security Council and Human Rights Council operate a system of special procedures and fact-finding missions for individual countries.
There are no guidelines for how these existing systems should operate alongside the COI system. First, as seen in the cases of the Sudan, Libya,
Lebanon and East Timor, Commissions of Inquiry can act independently.
Second, Commissions of Inquiry can exist alongside existing monitoring bodies. In Syria, there were three systems operating simultaneously: the country-specific Rapporteur, the Fact-Finding Mission, and the Commission of Inquiry. The Fact-finding Mission was established prior to the establishment of the Commission of Inquiry following a request by the HRC to the UN High Commissioner for Human Rights. The Fact-Finding Mission was mandated on a temporary basis following HRC Resolution S-18/1.
Furthermore, in the case of Côte d’Ivoire, the COI system operated alongside an Independent Expert on the situation of human rights in Côte d’Ivoire. The Independent Expert on the situation of human rights in Côte d’Ivoire was selected following a 2011 resolution by the Human Rights Council, and the Commission of Inquiry was also established following a resolution in the same year. In North Korea's case, the Commission of Inquiry operates alongside special procedures. In some cases a Commission of Inquiry may operate alone, in other cases it may operate alongside other bodies. In the case of North Korea, there have been cases where the same individual has been a member of the COI for the DPRK as well as operating as Special Rapporteur.
The Commission of Inquiry system is closely linked with the Responsibility to Protect (R2P) theory currently being debated by international society. The resolution for the establishment of the Commission of Inquiry on Libya in particular cited R2P theory. After the UN Human Rights Council expressed deep concern over the Libyan situation with Resolution S-15/1, there were strong calls upon the Libyan Government to meet its responsibility to protect its population, to immediately put an end to all human rights violations. The
activities of Commissions of Inquiry are closely linked with the international issue of R2P. It is highly significant that the UNHRC quoted R2P theory in its resolution to establish a Commission of Inquiry for Libya.
The West has taken the lead in the establishment of most Commissions of Inquiry, largely focusing on the poor human rights situation in the Middle East and Africa. One the other hand, the Commission of Inquiry for Lebanon was established in order to examine the serious human rights crisis within Lebanon caused by Israeli military action. While the West had played a key role in the establishment of most other Commissions of Inquiry, due to the particular characteristics of events related to Israel, it was not the West but rather China and Cuba that took the lead in establishing a Commission of Inquiry through the Human Rights Council.
<Table Ⅲ-1> Commission of Inquiry Condition of Establishment Comparison
Determining Body Voting Form Number of Commissioners
Special Procedures/
Fact-Finding Missions by Country
Sudan Security Council - 5 members X Syria Human Rights
Council Majority Vote
3 members (2memembers or 4 members)
Special Rapporteur, Fact-Finding Mission Libya Human Rights
Council Without
Vote 3 members X Lebanon Human Rights
Council Majority
Vote 3 members X East Timor Decision by the UN
Secretary-General - 3 members X Côte d'Ivoire Human Rights Council Without
Vote 3 members Independent Experts