Terms of Reference

AUTHORITY

The Inquiry Commission of Kazakhstan (the Commission) was created by Bindmans LLP on behalf of interested parties, namely a group of concerned citizens of Kazakhstan

Subject-matter mandate (ratione materiae)

The violations to the subject matter of the Commission are contained in the Mandate.

Actors investigated (ratione personae)

The mandate states “Identify, where possible, those responsible, with a view to ensuring that perpetrators of violations are held accountable”.

In doing so, the Commission will examine allegations of violations of violations and abuses of international human rights law committed by and on behalf of the government of Kazakhstan.

This will include acts or omissions by both State and non-state entities. It will also include identifying individuals allegedly responsible for such violations and abuses, with a view to ensuring that perpetrators are held accountable.

Geographic scope (ratione loci)

The Commission will investigate violations of international law, and violations and abuses of international human rights law committed in Kazakhstan and if relevant outside of Kazakhstan.

Temporal scope (ratione temporis)

The mandate states that the alleged violations should that are to be investigated include events leading up to the events leading up to and following January 2022.

The commission does not consider itself to be limited in temporal scope and will investigate incidents which may have occurred or will occur since the date of its establishment.

APPLICABLE LAW

With respect to the mandate described above, international human rights law, and international criminal law will constitute the law applicable law to the Commission’s mandate. It will also consider other obligations under international law as applicable and where relevant.

Regarding international human rights law, in accordance with the indivisibility of all human rights, the Commission will apply civil and political rights, along with economic, social and cultural rights equally.

The commission will have consideration to Kazakhstan’s Party status to the core human rights treaties:

· the International Convention on the Elimination of All Forms of Racial Discrimination,

· the International Covenant on Civil and Political Rights,

· the International Covenant on Economic, Social and Cultural Rights,

· the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment,

· the Convention on the Elimination of All Forms of Discrimination against Women,

· the Convention on the Rights of Persons with Disabilities,

· the Convention on the Rights of the Child.

In addition to treaty law, the Commission will also apply customary international human rights law.

Regarding international criminal law, the Commission will seek to investigate violations of the domestic law which also incorporate international criminal acts such as Kazakhstani Criminal Code Chapter 4 which include but are not limited to Article 160 (Genocide), Article 164 (Crimes against Humanity), Article 107 (torture).

The Commission will include criminal acts which violate the Rome State of the International Criminal Court despite any argument that the International Criminal Court lacks jurisdiction. The Commission will apply the elements of the crimes under the Rome Statute so long as they reflect customary international law.

As Kazakhstan is seeing membership of the Council of Europe the Commission will consider violations of the European Convention of Human Rights.

The Commission will consider any other relevant international law standard if it considers it to be relevant.

STANDARD OF PROOF

The Commission has decided to adopt the same standard of proof as the majority of international commissions of inquiry on human rights, that is one of “reasonable grounds”.

This means that findings will be included in the reports where the “reasonable grounds” standard of proof has been met, namely where, based on a body of verified information, an objective and ordinary prudent observer would have reasonable grounds to conclude that the facts took place as described and, where legal conclusions are drawn, that these facts meet all the elements of a violation or abuse, and any individual identified is responsible for the violation or abuse.

In applying the standard of proof adopted, where possible the Commission will pay particular attention to corroborating relevant information it receives or has collected.

In some cases, information provided by a reliable source may not need to be corroborated by multiple sources.

In line with its mandate the Commission will develop methodologies and standard operating procedures aimed at ensuring that information and evidence collected and preserved will be done in a manner which maximises the possibility of its admissibility in legal proceedings.

It will undertake first hand interviews with witnesses and victims of violations of international law and violations and abuses of international human rights law.

It will also collect information and documentation relevant to its inquiries from all States, relevant bodies and agencies of the United Nations system, civil society, the media, and other relevant stakeholders. The Commission will develop an information and evidence repository along with standard operating procedures to ensure that information or evidence collected or received is stored in a manner which meets international standards for evidence preservation.

COMPOSITION

Members of the Commission

The Commission will be composed of a Chair and 2 panel members who are members of Parliament.

Bindmans LLP invited Lord Ken Macdonald QC to chair the Commission and he in turn invited Rt. Hon Andrew Mitchel MP and Rushanara Ali MP as panel members

Counsel to the Commission

The Commission invited Tim James Matthews of Matrix Chambers to act as counsel to the Panel.

The Secretariat

Bindmans LLP will act as Secretariat and provide the Commission with administrative, technical and logistical assistance needed for the implementation of its mandate.

COOPERATION BY CONCERNED STATES

The Commission calls on all relevant parties to cooperate fully with the commission of inquiry and to facilitate its access.

The Commission will benefit from:

a) Freedom of movement within Kazakhstan;

b) Unhindered access to all places and establishments, and freedom to meet and interview representatives of national, local and military authorities, community leaders, nongovernmental organisations and other institutions, and any person whose testimony is considered necessary for the fulfilment of its mandate

c) Unhindered access for individuals and organisations wishing to meet the Commission;

d) Free access to all sources of information, including documentary material and physical evidence;

e) Appropriate security arrangements for the Commission's members, staff and documents;

f) Protection of victims and witnesses and all those who come into contact with the Commission, and an undertaking that no such person shall, as a result of such contact, suffer harassment, threats, acts of intimidation, ill-treatment or other reprisals.

In its reports the Commission will report on the level of cooperation received from the Governments of Kazakhstan along with any other State it approaches.

REPORTING OBLIGATIONS

The Commission will produce press statements as the Commission to provide updates on its inquiry.

The Commission will provide a final written report detailing its findings and making necessary recommendations.

METHODS OF WORK

The Commission will pursue its investigations and the collection and analysis of information and evidence placed before it guided by the principles of independence, impartiality, objectivity and integrity and the principle of “do no harm”, including in relation to guarantees of confidentiality and the protection of victims and witnesses.

The Commission will seek to receive information from as broad a range of stakeholders as possible. In addition to conducting first hand interviews with witnesses and victims, it will examine available secondary and open source materials.

It will request information and documentation as appropriate from civil society; the media; member States of the United Nations; organs, bodies and agencies of the United Nations; and other relevant experts and stakeholders.

For these purposes, the Commission will seek the cooperation of concerned authorities to conduct field visits to all the geographical areas that are included in its mandate. The Commission will also seek the cooperation of relevant authorities to conduct field visits to other countries or territories where it will meet victims, witnesses, experts and other stakeholders relevant to the implementation of its mandate.

It may hold roundtables, consultations, and public hearings with victims, witnesses, experts and other relevant partners as it would find helpful in the implementation of its mandate. It will also invite States and other relevant stakeholders, along with interested persons or organisations, to make written and oral submissions that could be of assistance to the Commission in the discharge of its mandate.

Information and evidence collected will be reviewed and analysed, and all information and evidence will be stored, protected and maintained safely and securely, in accordance with international practice standards in this area.

Given its mandate to ensure perpetrators of violations and abuses are held accountable, the Commission may develop protocols for the sharing of information with domestic, regional, or international accountability mechanisms subject to baseline requirements of fairness, due process, non-applicability of the death penalty and compliance with other applicable human rights standards.

With the handling of any information received, the informed consent of information providers to further external use(s) or sharing pursuant to the mandate will be fundamental. The Commission will be sensitive and alert to any protection concerns that victims and survivors may have as a result of its engagement with them, further to the cardinal principle of ‘do no harm’. Specific concerns will be considered and addressed as they arise, in conjunction as appropriate with affected persons.