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III. LEGAL INVESTIGATION OF TORTURE OR ILL-TREATMENT ISTANBUL PROTOCOL

journalistic materials, including notes taken by (c) They should provide flexibility in the scope of the
journalists not included in publications; (d) accounts inquiry to ensure that thorough investigation by the
by whistle-blowers/insiders of relevant events, practices commission is not hampered by overly restrictive
and information; (e) diaries and words scratched or overly broad terms of reference. The necessary
onto a wall, for instance in a place of detention; flexibility may be accomplished, for example, by
and (f) sketches, for instance of sites of violations. permitting the commission to amend its terms of
reference as necessary. It is important, however, for
the commission to keep the public informed of any
D. Commissions of inquiry amendments to its mandate.

238. Commissions of inquiry fulfil an important 2. Power of the commission
role in contributing to the accountability of
perpetrators, responding to the needs of victims, 240. The powers of the commission should be set
identifying institutional responsibility, proposing out by stipulating general principles. The
institutional, legal and personnel reforms and commission specifically needs the following:
promoting reconciliation. 371 Yet, on its own, a
commission of inquiry is “never sufficient to fully (a) Authority to obtain all information necessary
satisfy a State’s obligations under international to the inquiry, including the authority to compel
law with regard to torture and other forms testimony under legal sanction, to order the production
of ill-treatment” and “care must be taken to of documents, including State and medical records,
ensure that the work of the commission does and to protect witnesses, families of the victim and
not inhibit prosecutions in any way”. 372 other sources;

1. Defining the scope of the inquiry (b) Authority to issue a public report;

239. States and organizations establishing commissions (c) Authority to conduct on-site visits, including at the
of inquiry need to define the scope of the inquiry by location where the torture or ill-treatment is suspected
including terms of reference in their authorization. to have occurred;
Defining the commission’s terms of reference can
greatly increase its success by giving legitimacy to (d) Authority to receive evidence from witnesses and
the proceedings, assisting commission members in organizations located outside the country.
reaching a consensus on the scope of the inquiry
and providing a measure by which the commission’s 3. Membership criteria
final report can be judged. Vesting a commission of
inquiry with a specific task must be complemented 241. Commission members should be chosen for their
by providing adequate resources to enable the background and recognized impartiality, competence
commission to fulfil the task. Recommendations and independence as individuals, as defined as follows:
for defining the terms of reference are as follows:
(a) Impartiality. Commission members should not be
(a) They should be neutrally framed so that they do closely associated with any individual, State entity,
not suggest a predetermined outcome. To be neutral, political party or other organization potentially
terms of reference must not limit investigations in areas implicated in the torture or ill-treatment. They should
that might uncover State responsibility for torture or not be too closely connected to an organization or
ill-treatment; group of which the victim is a member, as this may
damage the commission’s credibility. This should not,
(b) They should state precisely which events and however, be an excuse for blanket exclusions from
issues are to be investigated and addressed in the the commission, for instance, of members of large
commission’s final report; organizations of which the victim is also a member or
of persons associated with organizations dedicated to
the treatment and rehabilitation of torture victims;

371 A/HRC/19/61, para. 26.
372 Ibid., paras. 69 and 55. See also updated set of principles for the protection and promotion of human rights through action to combat impunity, principles 6–13.

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