{"id":13613,"date":"2021-04-29T12:00:29","date_gmt":"2021-04-29T10:00:29","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=13613"},"modified":"2021-04-29T18:35:39","modified_gmt":"2021-04-29T16:35:39","slug":"less-is-more","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/less-is-more\/","title":{"rendered":"Less is More"},"content":{"rendered":"

Inter-state cases under the European Convention on Human Rights (ECHR) are important but challenging. Ensuring a meaningful role for the European Court of Human Rights (ECtHR) means to address the outcome and the procedure of inter-State cases, including preliminary proceedings, fact-finding and rules of evidence. In the following, I will build on practical insights emerging from my role as President of the International Humanitarian Fact-Finding Commission<\/a>. This body is treaty-based, established under Article 90 of the 1977 Additional Protocol I to the 1949 Geneva Conventions<\/a>, focusing on international humanitarian law. The Commission was only established in the early 1990s<\/a>. Subsequently, it took the Commission 25 years to perform its first operative mission in 2017<\/a>. Some of the lessons learned in this context (Thilo Marauhn in Hofmann\/Malkmus<\/a>, forthcoming 2021) may be helpful for re-designing the procedural framework for inter-State cases under the ECHR.<\/p>\n

Fact-Finding<\/strong><\/p>\n

To begin with, I would like to address the role of fact-finding in cases under international human rights law and international humanitarian law. There have never ever been as many commissions of inquiry or similar ad hoc bodies than today, from Syria<\/a> to Yemen<\/a>, from Venezuela<\/a> to Myanmar<\/a>. This quantitative finding notwithstanding, the qualitative output is very limited<\/a>. Expectations that international bodies can establish facts along the same lines as national courts do, have largely been frustrated. Apart from de facto<\/em> obstacles to access locations, or to get hold of witnesses and documents, limited financial and human resources have minimized the fact-finding potential of these bodies. The International Criminal Court<\/a> and, in particular, the Prosecutor\u2019s Office<\/a> provide a similarly disillusioning narrative. It is against this background, that the International Fact-Finding Commission has adopted a policy of exemplary fact-finding only. The administrative and financial implications of our 2017 operative mission<\/a> have taught us an important lesson to this end. For the ECtHR, in inter-State cases, it is plausible to exclude fact-finding from the Court\u2019s agenda, limiting the Court\u2019s role to an evaluation of the facts put before it by the parties. The Court should focus on the law and \u2018keep its eye on the ball\u2019, without getting drawn into disputes about facts which are hard to resolve for judicial bodies at the international level.<\/p>\n

This is not to say that international fact-finding does not generate effects. These are, however, less of a judicial character but rather political or diplomatic in nature. Fact-finding bodies signal that the international community has an eye on a particular issue, such as violations of human rights law and international humanitarian law in armed conflicts. Among others, fact-finding bodies operate against impunity. By way of example, this is one of the most important objectives for the establishment of the International, Impartial and Independent Mechanism<\/a> (\u2018triple IM\u2019) by the UN General Assembly in 2016. The role of the European Court of Human Rights in inter-State cases is totally different. It comes closer to traditional inter-State dispute settlement with fact-finding being part of diplomacy, and the judiciary focusing on the interpretation and application of the law. Fact-finding in inter-State cases does not strengthen the role of the Court. The message is: \u2018Stick to your knitting\u2019 \u2013 build on your doctrinal skills.<\/p>\n

Outcome of Cases<\/strong><\/p>\n

As a second issue, I would like to address the outcome of inter-State cases. It may be worthwhile to give precedence to a friendly settlement, according to Article 39 ECHR<\/a>, rather than a judgment. This line of arguments has been developed further by Helen Keller and R\u00e9ka Pisk\u00f3ty<\/a>, as well as Nicola Wenzel<\/a> in the framework of this Symposium. In contrast to individual complaints, inter-State cases do not only focus on the determination of human rights violations but on disputes between two of the High Contracting Parties. The decisive question is whether settling the dispute is more important than determining a human rights violation. In the case of the International Humanitarian Fact-Finding Commission, Article 90 (2) (c) (ii), of Additional Protocol I<\/a> includes interesting terminology by stating that the Commission is competent to \u201cfacilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol.\u201d Let me point out that,<\/p>\n