The Accountability Turn in Third Wave Human Rights Fact-Finding

Whereas the characteristics of human rights fact-finding largely vary depending on the typology and scope of the entity that carries it out, consensus seems to be developing that a common set of challenges to human rights fact-finding exists. This is especially so when carried out under United Nations auspices. For example, it has long been acknowledged that the very nature of the institution, sitting as it does at the crossroads of international politics, as well as the seemingly irresolvable tension between calls for human rights protection on the one hand, and State sovereignty on the other, present some structural challenges to human rights fact-finding. Furthermore, issues of coordination between the United Nations and other institutions (such as international governmental and non-governmental organisations, or international tribunals), as well as what some have called a ‘lack of institutional memory’ arguably often feature as regular traits among fact-finding mechanisms. In recent years, a further set of challenges has been added to the mix by additional requirements, featuring increasingly often in mandates, that instruct fact-finding mechanisms to make further determinations of facts (concerning, e.g., the identity of those most responsible for the violations being documented, or the existence of an armed conflict) and even consider questions of law (e.g. the qualification of the violations as crimes under international law). Building on an expanding body of scholarship on the subject, as well as the author’s own experience with fact-finding efforts sitting at the intersection between traditional international human rights law and international criminal justice, this article argues: (i) that human rights fact-finding has evolved in three waves; (ii) that the third wave of human rights fact-finding is characterised by an “accountability turn”; and that (iii) this turn has brought about an additional set of challenges to the already thinstretched capacity of UN human rights inquiries. By virtue of the arguments advanced in this article, the author posits that updating and solidifying the human rights fact-finding methodology can assist United Nations inquiries and other human rights fact-finders in strengthening the credibility of their findings.

when they do so under UN auspices. What some have called a 'lack of institutional memory', for example, is said to have long afflicted UN fact-finding bodies. 6 Another recurrent problem has been considered the coordination between the United Nations and other institutions, such as international governmental and non-governmental organisations, or international tribunals. It might even be said that the very nature of the UN as an institution, operating at the intersection of international politics, together with the seemingly irresolvable tension that exists between calls for human rights protection on the one hand, and State sovereignty on the other, present serious structural challenges to genuine human rights fact-finding. In recent years, however, the bar might have further been raised by additional requirements in mandates that instruct fact-finding mechanisms to make further determinations of facts (concerning, for example, the identity of those most responsible for the violations being documented, or the existence of an armed conflict) and even consider questions of law (for example, the qualification of the violations as crimes under international law).
The appearance of requirements that exceed traditional human rights mandates has surely stretched the capacity of UN human rights inquiries. It might have been inevitable, however, as the appearance of these requirements might be the product of a broader push for an "accountability turn" in human rights fact-finding. UN inquiries, in fact, have not been alone in witnessing an "accountability turn". The desire for accountability among affected communities has contributed to more and more human rights groups documenting abuses in the hope that their work might increase demand for criminal trials. This has had the consequence of "popularising" justice; however, it has also increased confusion as to both the legal framework and procedural requirement to be followed in these instances of fact-finding. After analysing what this article defines as "three waves of human rights fact-finding" and "accountability turn", the discussion will turn to clarifying the important differences between criminally investigating and the more "neutral" act of fact-finding, as well as considering the peculiar challenges encountered by third wave human rights fact-finding, and by UN factfinding as such. The article will conclude with a discussion of how some changes in the fact-finding methodology might constitute a way forward that could benefit third wave UN fact-finding entities, but also more generally third wave fact-finding bodies regardless of their scope and/or their official or unofficial capacity.

II. The Three Waves of Human Rights Fact-finding
As stated in this article's introduction, the emergence of the transitional justice field was naturally accompanied by the emergence of human rights documentation and fact-finding. In the late '70s and early '80s, the bulk of human rights documentation was carried out by the civil society. 7 Realising the importance of testimony and documentation to 'buttress claims of human rights violations', the civil society started in fact reporting and collecting materials that, though largely utilised for domestic purposes, 'begun to make tangible contributions to the project of international justice'. 8 These early movements were strongly prevalent in Latin America, where despite the installation of military dictatorships and a harsh crackdown on the civil society, human rights groups went underground, remaining vibrant. 9 The momentum created by nescient human rights norms and the proliferation of human rights treaties had a strong impact, empowering those human rights groups to believe in, hope for, and eventually demand accountability. It is important to mention, in addition, that the author recognises the diversity of scope and nature of UN fact-finding bodies, and fully appreciates the difference in mandates, for example, between Panels of Experts that support Sanctions Committees and report to the UN Security Council, or human rights components of Peacekeeping Missions responding to the Office of the High Commissioner for Human Rights and Special Rapporteurs or other Special Mechanisms and Procedures of the Human Rights Council, and Special Representatives of the Secretary General on a number of thematics/countries. Whereas, to some extent, all UN fact-finding mechanisms have to grapple with how to document and report on serious violations of human rights, and as such can benefit from a solid and consistent methodology, the discussion as articulated in this contribution refers more strictly to the issues that confront Commissions of Inquiry and other UN fact-finding mechanisms that have seen their mandates characterised by an "accountability turn". See Section III below. 7 To be sure, efforts led by the civil society have continued to feature prominently in the human rights documentation panorama, and have increasingly taken a more professional turn, see Federica D'Alessandra and others, Despite doubts that have been casted as to the coherence of their agenda, 11 these groups constituted the first set of monitors (and often denouncers) of contraventions of nescient norms enshrined in human rights treaties. 12 By virtue of their nature, in opposition as they were to the governments whose abuses they documented, these first human rights groups conducted their documentation activities entirely on their own initiative. They did so informally, without any official sanctioning and relying almost entirely on their domestic capacity. 13 International attention for domestic enforcement of international norms had begun to emerge in the mid to late seventies, with the entry into force of the first international human rights treaties. 14 Yet, it was not until the crumbling of the first dictatorships that the international community begun to pursue more vigorously serious violations of international human rights law. 15 The strength of the momentum built with the fall of the first dictatorships when civilian governments in Latin America established a series of Truth and Reconciliation Commissions with the support of the international community. 16 With the establishment of Truth Commissions in Bolivia and Argentina (1982), 17 post-conflict and transitional societies became the subject of inquiry for a new generation of fact-finding bodies. Born as a response to the fall of the regimes opposed by human rights groups throughout their rule, perhaps as a tribute to the work of these groups, and definitively to cater to the appetite for justice and redress that emerged from their activities, 18 Truth and Reconciliation Commissions began to be set up around the world to investigate and document abuses in the aftermath, or at the beginning, of many transitions to democracy. 19 Unlike the first wave of human rights documenters, which were forced to coexist with the governments whose abuses they were to monitor and denounce, the institutions that made up this second wave of factfinding were mostly ex post facto mechanisms. 20 Also, unlike their early predecessors, this new generation of fact-finding bodies was almost exclusively composed by officially appointed, though still mostly domestic, mechanisms. 21 Furthermore, unlike the organisations that began to be active within the first wave of human rights fact-finding, many of which are still active to this day, all Truth and Reconciliation Commissions were almost exclusively temporary bodies, whose mandate ended with the submission of a report. 22 Nevertheless, their "official" capacity gave second-wave mechanisms unparalleled leverage in investigating and (…) a reexamination of the contested politics of self-determination in the late 1960s and 1970s suggests there was no single "human rights movement" with a clear set of goals or even a rough consensus on what constituted core human rights. Rather, like other contested human rights norms, the meaning of self-determination emerged from political, ideological, and sometimes even military conflict, with a multiplicity of actors seeking to enlarge or constrain it to suit their own purposes, See Bradley R Simpson, 'Self-Determination, Human Rights, and the End of Empire in the 1970s' (2014) 4 Humanity Journal 239. 12 Risse, Ropp and Sikkink (n 10). 13 id. 14 Shah (n 9 (1) is focused on the past, rather than ongoing, events; (2) investigates a pattern of events that took place over a period of time; (3) engages directly and broadly with the affected population, gathering information on their experiences; (4) is a temporary body, with the aim of concluding with a final report; and (5) is officially authorized or empowered by the state under review.
documenting human rights abuses, 23 together with a much broader set of resources. The establishment of these mechanisms might as well have been welcomed as a turning point in history, signalling to governments around the world that the international community bore witness to their abuses. Whilst constituting a significant step forward towards accountability, this new typology of mechanism was focused more on sanctioning and recognising the need to redress the harm done to the victims than to bringing perpetrators to justice. 24 In the 1990s, drawing from re-energised multilateralism following the fall of the Berlin Wall and the collapse of the Soviet Union, a new wave of human rights fact-finding mechanisms arose spearheaded by the United Nations. 25 In 1992, in reaction to the horrifying violence that for the first time since World War II engulfed the European continent, and moved by unprecedented public pressure to "do something" about the crisis, 26 the United Nations established a commission of experts to investigate the situation in the former Yugoslavia. The Yugoslavia Commission was established via United Nations Security Council Res. 780/1992, with the mandate to ' examine and analyse the information submitted pursuant to resolution 771 (1992)', 'together with such further information (…) [it] might obtain through its own investigations or efforts' ' on the evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia'. 27 In many ways, the Yugoslavia Commission was unprecedented. For the first time, a domestic or international fact-finding mechanism was mandated to inquire beyond traditional human rights law, with the inclusion of international humanitarian law amongst its competencies. It was also the first time that a United Nations established international commission of inquiry contributed directly to the establishment of an International Criminal Tribunal, and fed its report and findings to the Office of the Prosecutor. 28 The proliferation of mechanisms similar to the 1992 Yugoslavia Commission has been astonishing: since 1993, the United Nations Office of the High Commissioner for Human Rights was established, and tasked to support and deploy circa 50 commissions and fact-finding missions. 29 This third wave of human rights fact-finding bodies is distinguished from its predecessors in that it is characterised by official United Nations mandates, has access to United Nations personnel and resources and, although not exclusively, has a largely international composition. Increasingly, some of these procedures are 23 Despite the fact that obstacles remained to the timely delivery of their missions, see generally Hayner (n 17). 24 Onur Bakiner, Truth Commissions: Memory, Power, and Legitimacy (Penn Press 2016). 25 With few exceptions in earlier years, the 1990s truly were the years in which the United Nations begun to see a proliferation of monitoring and fact-finding mechanisms. In its first forty years, in fact, the UN only set up five fact-finding commissions to Viet-Nam (1963), Mozambique (1973), Chile (1975), Israeli Occupied Territories (1979, and Cuba (1988)  Because of this monitoring and crisis-response function, third wave mechanisms resemble first wave mechanisms in their sequencing. 31 The most important feature of these Commissions, however, is that given the timing of their establishment, and thanks to both the mandates conferred upon them as well as their immunities and privileges, 32 they might be in a unique position to collect and preserve evidence that might 'form the basis for any initial prosecutions'. 33

III. The "Accountability Turn" in Third Wave Human Rights Fact-finding
The protection and enforcement of international human rights is a core competence of the United Nations as an institution. 34 Although scholars entertain 'fascinating but largely unresolvable debates' surrounding the sources and nature of international human rights law, 35 the "practice" of human rights within the scope of the United Nations is generally intended to refer primarily to the rights enshrined in the Universal Declaration of Human Rights, subsequently codified and developed by the international community through a number of international treaties. 36 This is indeed the body of law that United Nations inquiries and factfinding commissions have traditionally been tasked to monitor and report.
30 As Rapp continues: The UNHRC consists of 47 member-states elected for three years terms by the UN General Assembly. By tradition, its members prefer to operate by consensus, but when consensus is not possible, mandates for official inquiries can be approved when a majority of members vote yes, and [unlike the UNSC] none have the power of veto. See Steven J Rapp, 'Bridging The Hague-Geneva Divide: Harmonizing Multiple Investigations of International Crimes' (2016) 7 Intersections, The Hague Institute for Global Justice 11, 11. 31 Whereas second-wave mechanisms were mostly deployed in the aftermath of situations in which human rights violations on a massive scale had been perpetrated, and as part of the transition, both human rights documentation in the first and third wave have a monitoring function, and are mostly established as a means to respond to human rights abuses as they unfold. It should be noted that human rights fact-finding groups of the first wave have not at all disappeared. To the contrary, they still today constitute the backbone of the human rights and international crimes documenting community. See D'Alessandra and others (n 7). 32 Convention on the Privileges and Immunities of the United Nations (adopted 13 February 1946, entered into force 17 A first stretch of these mandates occurred around the early to mid-1990s when, besides international human rights law as understood within the UN system, fact-finding missions and commissions of the third wave started monitoring and assessing compliance with international humanitarian law, when these operated in relation to international or non-international armed conflicts. 37 Similarly, since the mid-2000s, 38 a second stretch to the applicable body of law seems to have occurred, reaching beyond international human rights law and international humanitarian law, to include international criminal law as a constituent element of the legal framework applicable to these monitoring bodies. 39 Although, in fact, human rights inquiries have largely explained that their understanding of accountability goes beyond that of criminal prosecutions, 40 scholars have highlighted a limited application of international criminal law as emphasised within their mandates, which ' can be inferred from the explicit reference in the mandate to, for example, "crimes" and "identifying those responsible"'. 41 This preponderance of language is evident when surveying the mandates of UN commissions of inquiry and other investigative mechanisms set up since the mid-2000s. For example, the mandate of the UN Commission in Darfur (2004) 37 Lewis offers a very accessible primer to the difference between international human rights law and humanitarian law: At its core, international human rights law (IHRL) seeks to regulate the relationship of the government to its population in order to spur the government to do what is necessary to ensure the safety and well-being of its population while allowing the population to pursue their desires unencumbered by unwarranted government intrusion. International humanitarian law (IHL) -also known as the law of armed conflict -is more limited, applying only during armed conflict and seeking generally to inject a modicum of humanity into wartime by regulating the means and methods of warfare and protecting those not, or no longer, directly participating in hostilities. While IHRL has a fundamental mission of transforming the relationship between the government and the population, IHL aims primarily to limit the effects of hostilities on populations, whether civilians, detainees, the wounded, the sick, or those otherwise hors de combat.  (2004). 39 International criminal law is a body of public international law designed to prohibit certain categories of conduct commonly viewed as atrocity crimes (meaning serious and systematic violations of international human rights law, or grave violations of the laws of war, including international humanitarian law and the law on the use of force) and to make perpetrators of such conduct criminally accountable. International criminal law, like international human rights law, is based on sources of international law (ie treaties, customary international law, and general principles of law). Differently from international human rights law, however, international criminal law deals with prohibitions addressed to individuals (as opposed to States) and imposes penal sanctions for violation of those prohibitions upon individuals. The crucial characteristic of criminal law is in fact that, for a finding to be made, three things must be established: (1) That the violation (ie crime) in question occurred (ie crime-base); (2) That the person in question committed the crime (ie linkage evidence); and (3) (2014) to 'make recommendations, in particular on accountability measures, all with a view to avoiding and ending impunity and ensuring that those responsible are held accountable'. 42 Some have argued that this increased focus on accountability (and criminal accountability language in particular) should not be surprising given the proliferation of international courts and tribunals that the world witnessed since the mid-'90s, a proliferation which itself benefitted from a re-energised multilateralism following the fall of the Soviet Union. 43 Others might think that this focus is aligned with 'the birth of a new age of accountability' following the establishment of the first permanent International Criminal Court. 44 Care, however, is peremptory in avoiding conflation between two bodies of an essentially different nature and scope.

IV. The Important Differences between Investigating and Fact-finding
Criminal investigations are aimed at establishing the existence of a specific set of crimes and the responsibility of their individual perpetrators. 45 In that sense, their substantive and procedural requirements, as well as the standards adopted, are much stricter, and of an essentially different nature than those used by factfinding mechanisms. Whereas reporting individual violation cases, especially when they are high profile or particularly useful to illustrate broader patterns, is in fact not inconsistent with the purpose of commissions of inquiry, the purpose of these bodies is often not to investigate the details of an individual's fate or action, or to seek accountability for a specific violation, but rather to paint the big picture of the character, scale, and entity of the violations documented. This is an important difference because the bodies of international human rights and humanitarian law (to which the term violation refers) and the body of international criminal law (to which the term crime refers) do not overlap completely. 46 While it is possible that a violation of human rights law or international humanitarian law may also constitutes a crime under international criminal law, not all human rights or humanitarian law violations will be accommodated easily under the international criminal law framework. Take for example the contrast visible between the freedom from torture and the right to marriage and a family. An absolute prohibition against torture exists under international human rights law, 47 with torture also characterised as a grave breach of international humanitarian law, 48  It is striking that while the emergence of the various international and mixed criminal courts and tribunals over the past two decades has generated a veritable industry and a vast literature, fact-finding has been so neglected as an area for sustained exploration, critique, and refinement. The explosion in the number and variety of international fact-finding bodies could reasonably be argued to be a development of comparable significance (…). criminal law. 49 However, whilst the right to marry and form a family exists under international human rights law, 50 there is no equivalent positive requirement under international humanitarian or international criminal law to which a breach or crime can be attributable. Furthermore, when making determinations on "responsibility", at least traditionally, fact-finding commissions look at the responsibility of States, not to that of individuals. This is because their primary goal is to bring about a policy change with regards to the situation exposed, not to bring the individual perpetrator to account. Finally, the very nature of these inquiries, which often report on situations in territories to which they have never even been granted access, and their composition (staffed, as they are, by human rights officers, not criminal investigators), largely support the idea that these mechanisms are and should remain separate, both in operation as well as in perception, and that fact-finding missions and commissions should not be considered, or turned into, vanguards for international criminal courts and tribunals.
At the same time, given that the world's worst situations of ongoing atrocity crimes are often beyond the reach of international criminal justice, 51 and that commissions of inquiry and other United Nations fact-finding and investigative mechanisms are the only chance the international community might get to officially conduct testimony collection and documentation of serious abuses (i.e. crimes) in those countries, 52 it might be worthy to explore what these mechanisms can do to maximise their effectiveness and efficiency with the primary purpose of preserving evidence of international crimes. This is especially so when this evidence might be damaged or become unavailable at a later stage. 53

V. Challenges to United Nations Human Rights Fact-finding
Already at the beginning of implementation of third wave fact-finding mechanisms it was clear that the challenges they would face were considerable. Cherif Bassiouni, who served as the Chairman of the 1992 Yugoslavia Commission following to its first chairman's resignation, wrote eloquently about some of the challenges the mechanism encountered. Recognising a sub-set of issues (institutional, budgetary, and those related to their mandate and the way commissioners interpreted and implemented it), his writing brought to light the serious consequences of operating within a fundamentally political institution. He postulated, for example, that the leverage, importance, and contribution of a given mechanism is dependent upon who appoints it, under what circumstances, and with what mandate and resources. 54 All of these factors depend, in turn, upon the outcome of political processes. The United Nations is indeed by nature an institution that on the one hand strives to achieve universality of certain values, while on the other is compelled to factor political compromises into these achievements. 55 This tension between the United Nations nature and its ambitions is most clear in the human rights component of the system which 'reflects the values of justice', while systemically 'it functions as a political 49 In international criminal law, torture can be constituted as a crime against humanity, a war crime, and as an act of genocide. See eg Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90, arts 7(1) (f), 8(2)(a)(ii)(1), 8(2)(c)(i)(4), and 6(b). 50 ICCPR, art 23. 51 Because of a lack of jurisdiction by the ICC and a gridlocked UNSC refusing to refer tragic situations to the Court. At the time of writing, see the situations in Syria, South Sudan, and the Democratic People's Republic of Korea, to name just a few. 52 Unofficial efforts spearheaded by local civil societies, on the other end, proliferate wherever atrocities are beyond the reach of officials, see D'Alessandra and others (n 7). For a mapping of the civil society documentation world, as well as a collection of resources they might use to conduct documentation broken down by language, typology of violation, and typology of challenge encountered, see HRDT, 'Human Rights Documentation Toolkit' <www.hrdtoolkit.org> accessed 27 February 2017. 53 This is, in fact, very common in situations of atrocity crimes. Access to international criminal investigators is rarely granted in a timely manner in situations of atrocity crimes. That is because the governing entity or party having effective control of a territory on which crimes are bring committed, is both the party upon whose consent the international community relies to be granted access, and a likely subject of investigations for either having perpetrated or failed to prevent the crimes in question. See eg Bassiouni, International Criminal Law (n 33); Cryer and others (n 39). 54 Bassiouni states that '[t]he establishment, methods, and goals of fact-finding missions (…) depend essentially on (…)': (1) The organ, body, or agency that establishes determines its subject matter, scope, and political authority and influence over the bureaucracy; (2) The mandate given to it, which determines the scope of the mission and its duration, as well as its political authority; and (3) The degree of political support from the permanent five members and, more particularly, from the three Western ones, which determines its real authority and effectiveness. See (n 6) 38. UN fact-finding mechanisms can in fact be part of UN peacekeeping missions when these have human rights components, or can be appointed by the Security Council, the Human Rights Council, and designated by the High Commissioner, or even by the Secretary General. See UNOHCHR, Commissions of Inquiry (n 29). 55 Jared Gensen and Bruno Stagno Ugarte (eds), The United Nations Security Council in the Age of Human Rights (CUP 2014). process, thus conditioning the upholding of these values to political oversight'. 56 This reality impacts both mandates and resources. The strength of the mandate conferred upon these investigative mechanisms, for example, (as well as the adequacy of the resources they will receive), largely depends upon whether the mandate is truly intended to be carried out, or whether the fact-finding mechanisms has been established as a gag-measure in response to a crisis. 57 Bassiouni offers an explanation of why this might be the case, 'because the values of truth and justice have become part of the tools of realpolitik '. 58 He observed: (…) nothing can be done to overtly contradict these values. Consequently, less than obvious ways must be devised to ensure that these missions will, when politically convenient, give only the appearance of pursuing these values while at the same time not generating politically unwanted results. 59 The best way to do this is to ensure that the mechanism is chronically understaffed and under-resourced. Most fact-finding missions have in fact very limited resources, sometimes none at all, 60 and are supported by staff often on a part-time basis. 61 This under-staffing and under-resourcing has to impact their modus operandi: (…) these missions seldom have the resources or the ability to do effective field-work or empirical research. Consequently, they rely heavily on the NGOs, government reports, and the media. Many rapporteurs, or whatever their actual designation may be, produce reports even though they never set foot in the territory where their investigation takes place. (…) The Security Council may establish a Commission because it sees the need, at that time, for that issue to go through a particular process, (…) function (…) essentially window dressing [it]. 62 The mostly ad hoc issuance of the mandates, however, causes arbitrariness and unpredictability concerning decisions to issue, extend, amend or terminate mandates, 63 and infrequent continuity in follow-up to missions. 64

VI. The Challenges of Third Generation United Nations Human Rights Fact-finding
At first glance, it appears uncanny how little has changed since Bassiouni addressed these issues more than fifteen years ago. Whilst the lack of significant progress, at least institutionally, may speak at length as of the importance the international community of States places on human rights fact-finding and investigative missions, a closer look reveals that some things have begun in fact to change. While Bassiouni found that there was 'no standard operating procedure for fact-finding missions, [that] no manual existed to describe how an investigation should be conducted and, there [was] no standard, though adaptable, computer program to input collected data', in recent years (and to its credit) the Office of the High Commissioner for Human Rights has both standardised its data collection (especially insofar as computerised systems are concerned), and issued guidance in the form of guidelines to commissions of inquiries. 65 What is more, a series of third party initiatives spearheading from academic institutions, law societies, and global think tanks have attempted to supply the Office of the High Commissioner's efforts with further guidance. 66 These civil society initiatives clarify questions such as: When is an investigation rights-based, and where do other bodies of law, such as humanitarian law (…) fit into human rights fact-finding? And what practices are described by "fact-finding"? How is it distinguished from other forms of investigation? 67 Furthermore, how do you interact with traumatised individuals? How do you standardise your testimony collection? And, what type of support and expertise is necessary to conduct human rights fact-finding?
In the words of the former United Nations Special Rapporteur and Commissioner Philip Alston, and his co-author Sarah Knuckey: ' what is clear from these different efforts is that human rights fact-finding as a field is evolving along two essential strands: how to advance investigative methods, and how to respond to critical insight'. 68 The former has become necessary by virtue of what this article has defined as the "accountability turn" in third wave mandates, and the new set of challenges this added to human rights fact-finding. The latter has become necessary both because of the accountability turn, and because of the politicisation of human rights fact-finding.
When the genesis of a process is indeed politicised, its outcome is equally viable to criticism (including at the hands of those who were on the receiving end of the scrutiny). Alston and Knuckey, in their recent work The Transformation of Human Rights Fact-Finding, collect quite a number of examples of this. Discussing the work of the 2009 Goldstone Commission on Alleged Violations of Human Rights and International Humanitarian Law during the Gaza Conflict, they write: '[t]he commission's report provoked immense controversy, generated an array of follow-up analyses, and brought to public attention many of the previously invisible issues relating to fact-finding methodologies and outcomes'. 69 The Commission's report was criticised harshly and the chairman of the commission himself retracted the claim that Israel had intentionally targeted Palestinian civilians after a few months. 70 Similarly, in August 2010, when the report of the

Mapping Exercise Documenting the Most Serious Violations of Human Rights and International Humanitarian Law Committed within the Territory of the Democratic Republic of the Congo between March 1993 and June
2003 was published, the Rwandan government ' described the report as ahistorical, and "dangerous and irresponsible", and condemned the methodology used as "deeply flawed and one-sided"'. 71 It criticised the ' overreliance on the use of anonymous sources, hearsay assertions, unnamed, un-vetted and unidentified investigators and witnesses, who lack credibility; and allegation of the existence of victims with uncertain identity '. 72 Whilst in the author's opinion the criticism, as formulated by the Rwandan government, is unfair, some grounds of truth do exist as regards the methods used by some fact-finding inquires. The normal modus 66 Among the most notable efforts, the Siracusa Guidelines, the London-Lund Guidelines, and the various projects and manuals published by authoritative institutions to this end. operandi of these mechanisms is already problematic on its own, as it often involved extensive interviews with victims, families, witnesses, experts, and government officials; assessments of reports from the civil society; 73 forensic and medical reports; as well as other documentary evidence that ' constantly raise[s] both practical and ethical questions'. 74 Since the "accountability turn" in fact-finding mandates, the ethical and practical questions faced by fact-finding and human rights investigative mechanisms have multiplied. It is no coincidence that the harshest criticised reports have been the ones that featured questions of law and fact related to international crimes within the findings. 75 It is thus worthwhile asking whether the guidance issued by the High Commissioner's office (and by other organisations along the same theme) goes far enough in term of assisting fact-finding mechanisms in facing some of these most recent challenges.
The work of fact-finding mechanisms requires the reviewing of photos and videos, as well as documentary evidence collected by third parties, including individual citizens and groups in the civil society, but also, and increasingly, conducting on-site visits to assess evidence requiring forensic expertise, often during hostilities. Alston clarifies that although: (…) with each investigation, we sought to improve our methods-including around how informed consent was obtained from interviewees, information storage and security, interview technique, and incorporation of the insights of, or working with, experts in other areas such as ballistics, pathology, video analysis, the science of eyewitness testimony and memory, mental health, and environmental science. (…) improvements often seemed ad hoc, reactive, and particularised to specific investigations and incidents, and there was little written advice of sufficient detail, specificity, and nuance to provide adequate guidance. 76 Wilkinson, Boutruche, Grace, and Coster van Voorthout provide in their work further examples of challenges imposed by the new mandates' requirements which, following the accountability turn, confront inquiries and fact-finding commissions with new questions of law and of facts. 77 Examples of the former include, mandates' requests to characterise violations as crimes under international law, or the necessity, following from mandates' formulation, to articulate the co-applicability of human rights law, international humanitarian law, and international criminal law, as well as of the different standards of proof that may apply. Examples of the latter would be the necessity, again following mandates' formulations, to make determinations or observations concerning the existence of an armed conflict, or merely demonstrating the existence of crimes and evidence linking their commission throughout the chain of command. These questions again derive from the mandates' formulations, to make substantive determinations upon crimes and their patterns.
While more third parties' initiatives have recognised the importance of further guidance on these challenges, 78 and the Office of the High Commissioner's itself might have begun considerations in this direction, more sustained guidance is necessary. Because of the potential for uniformity this would generate, this guidance would be most beneficial if it came from the Office of the High Commissioner, however, rather than from third parties.

VII. Conclusions and Ways Forward
The panorama of human rights fact-finding has been in constant evolution since the first wave of human rights fact-finding appeared in the late '70s and early '80s. With first and second generations' mechanisms, the reach, capacity, and impact of fact-finding bodies grew progressively. Thanks to this growth, normative developments have turned calls for accountability for atrocity crimes into a staple of crisis-response mechanisms across the globe. 79 United Nations third wave fact-finding mechanisms, following their predecessors' examples, have an important role to play in addressing accountability for atrocity crimes. For this reason, a remarkable evolution in human rights fact-finding has seen the day of light. United Nations human rights inquiries and other fact-finding mechanisms' mandates have registered an "accountability turn" that has forced these entities to deal with both the expectations as well as the pragmatic and ethical challenges of having been invested with applying the law of international criminal justice. This has taken shape in mandates' increased calls for pronunciations, on part of United Nations mandated commissions of inquiry and other fact-finding entities, on matters of law or fact that bridge into other bodies of law than that regulating international human rights. Examples of such calls are mandates' requests to characterise violations as crimes under international law, or the necessity, following from mandates' formulation, to articulate the coapplicability of international human rights law, international humanitarian law, and international criminal law, as well as of the different standards of proof that may apply, or to identify perpetrators of international crimes.
Whereas it is this author's opinion that human rights fact-finding mechanisms and criminal justice mechanisms are, and should remain, conceptually and operationally separate entities, it is undeniable that the international community places 'seemingly ever-increasing reliance (…) on such investigations'. 80 This is because situations coming under the attention of said fact-finding mechanisms are often beyond the reach of international justice, and thus fact-finding entities might often be the only mechanisms able to collect evidence and testimonies of international crimes. This is true not only for officially appointed UN fact-finding bodies, but also for local rights groups in the civil society who have equally been affected by the accountability turn.
Whereas the environment in which United Nations human rights fact-finding operates is invariably political, and as a consequence of this, their mandates and operations will inevitably be -to some extentpoliticised, it is necessary to recognise that issues originating in the inconsistent methodology and lack of institutional memory of fact-finding mechanisms pose real challenges. Noting the improvements already undergone by both the OHCHR (in support of these mechanisms), as well as the broader human rights fact-finding community at large, this article calls for the solidification of a human rights fact-finding methodology, particularly insofar as the standardisation of investigations best-practices and the incorporation of forensic and other expertise among mechanisms' staff is concerned.
While unclear and often unrealistic mandates, as well as the political forces behind them, will continue to submit the operability and achievements of human rights fact-finding to political and other (including budgetary) dynamics, a solid, sustained, and centralised guidance on operations, best practices, and standardised procedures for the collection, archival, and preservation of information relevant to international crimes is necessary, and can benefit both official and unofficial inquiries. A clear articulation of the standards adopted and best practices followed by human rights fact-finding will both diminish windows of opportunity for (inevitably politically-motivated) criticism, and bolster the credibility of findings. What is more, a clearly identified and centrally-mandated methodology will, paired with proper collection and preservation procedures, enable subsequent criminal accountability mechanisms to take in greater consideration of human rights fact-finding results, perhaps enhancing these mechanisms' ability to contribute more strongly and directly not only to the record of injustices, but also to the delivery of justice. 79