Anchoring Accountability for Mass Atrocities: Providing the Permanent Support Necessary to Fulfil International Investigative Mandates (Part II)

[Federica D’Alessandra is the Executive Director, Oxford Programme on International Peace and Security, Institute for Ethics, Law, and Armed Conflict (ELAC), Oxford Blavatnik School of Government; immediate past Co-Chair & Advisory Board, IBA War Crimes Committee; Council, IBA Section on Public and Professional Interest & Human Rights Institute. Ambassador Stephen J. Rapp is a Senior Visiting Fellow of Practice, Oxford Programme on International Peace and Security, Blavatnik School of Government; Distinguished Fellow, Simon Skjodt Center for Genocide Prevention, US Holocaust Memorial Museum; Advisory Board, IBA War Crimes Committee and Human Rights Institute; Chair, Commission on International Justice and Accountability; former US Ambassador-at-Large for Global Criminal Justice (2009-2015). Kirsty Sutherland is a Research Consultant; Oxford Programme on International Peace and Security; MPP, Blavatnik School of Government; Officer, IBA War Crimes Committee; Barrister, 9 Bedford Row International.]

[This blog post addresses new research being carried out at the University of Oxford around the question of whether some form of permanent support – or even a permanent investigative mechanism – should be created to fulfil international investigative mandates. This post, which is part of a series of ten, addresses some general observations emanating from our research, as well as the preliminary findings of our interviews with civil society groups that are documenting atrocity crimes for accountability purposes].

In a recent post, we introduced a research project we are carrying out at the University of Oxford, in partnership with the International Bar Association and the US Holocaust Memorial Museum Simon Skjodt Center for Genocide Prevention, that seeks to understand how UN mandate holders (MHs) with a focus on accountability can be better supported. (These include monitoring, fact-finding (FFMs) and inquiry commissions (CoIs) established to prepare reports on serious human rights violations, and ‘new investigative mechanisms’ (NIMs) created to build case files to achieve accountability for atrocity created to build case files to achieve accountability for atrocity crimes committed in Syria – IIIM and OPCW IIT, Iraq – UNITAD, and Myanmar, IIMM). For a sampling of MHs challenges, see here, and here). Our project seeks to provide evidence-based, realistic and cost-effective recommendations with a view to improve efficiencies and maximise outputs, against a background of scarce resources and competing priorities.

As part of our research methodology, we are we engaging, among others, with stakeholders such as ‘end users’ of evidence (domestic and international prosecutorial and judicial authorities, referred to as PAs), and ‘suppliers’ of such evidence (ranging from small civil society groups that operate at or near the crime scenes, to major international human rights NGOs that have the resources to retain regional experts with networks of local contacts, all referred to as EPOs).

Over the course of May, June and July 2020, Ambassador Stephen Rapp, on behalf of our team, conducted 57 virtual interviews of leading suppliers as well as end-users of information relevant to determining responsibility for atrocity crimes.  These included representatives of 34 EPOs, and 23 representatives of PAs, including investigators and prosecutors at the International Criminal Court (ICC), and in the 13 national jurisdictions that are the most active in trying alleged perpetrators of atrocity crimes.

Interviews focused on the direct relationship between the EPOs and PAs, as well as on relationship of each with MHs, to which EPOs often supply information, and from which the PAs seek information and analysis that is relevant to their cases. In this blog post, we discuss the preliminary findings of our interviews with EPOs. Another post will follow suit in which we discuss the preliminary findings of our interviews with PAs.

The landscape of international criminal investigations

In many current investigations of international crimes, PAs do not have direct access to the crime scenes, witnesses, or documentary material. For this reason, PAs must often rely on EPOs who collect (and sometimes analyse) the evidence, and either send it either directly to PAs, or channel it through MHs, which also do their own collection and analysis before making some of their evidence available to PAs. 

The first finding of our research is that many actors increasingly think of a landscape where streams of information originate with EPOs, pass through and are processed by UN MHs (particularly the NIMs), and arrive in some form toPAs.  

At a time of increased resistance to international criminal justice and human rights, the activities of EPOs and UN MHs have energised a continued commitment to pursuing accountability for international crimes. The case of Myanmar, where the activities of the ICC, the IIMM (before it became the Myanmar FFM), the International Court of Justice, and many civil society groups currently intersect, might be the most illustrative example.

At the same time, this proliferation of activities around the same crime scenes also carries significant risks. In extreme cases, these can include the loss of probative value of evidence, or the re-traumatisation of victims and witnesses. As more international justice actors operate around the same situations of mass violence greater coordination is essential.

EPOs perspective on the current landscape of accountability

Of the 34 EPOs interviewed, 20 stated that criminal accountability measures are their highest priority, and 14 that they are ‘very important.’ This overwhelming focus on accountability (including from major NGOs more traditionally concerned with human rights advocacy) is reflected in an apparent growing focus on gathering and providing evidence in accordance with criminal procedural standards. The EPOs appear universally keen for the mechanisms to be more than a depository of information, but also to proactively pursue cases and engage with authorities, using their evidence and providing investigative guidance where appropriate.

Another theme emerging from the data collected is the important role the mechanisms can play in conducting open source investigations to support the work being done by those on the ground, which will require a novel staffing profile as well as cutting-edge technology and expertise to verify material of this nature. A recurrent refrain concerned the modernisation of UN bodies such that they are truly able to handle the digital revolution.

The predominant issues identified with regard to providing evidence to the mechanisms centre on witness security, and the security of transmitting material. Focus must be given to overcoming these concerns.

Beyond good relations, everyone stands to benefit from proactive relationships between the mechanisms and the EPOs on which they rely. Perhaps most clearly, many organisations emphasised the role the mechanisms could play in building capacity on the ground, through training, constructive feedback, logistical support and funding. Given the technological resources available to the mechanisms, it is hoped that they can play an important role in verifying digital material and corroborating witness and physical evidence.

The view was also expressed that mechanisms could provide straight-forward training in best practices to ensure that the probative value of the evidence collected is maximised (witness identification, consent to be interviewed; metadata storage), coordination and joint strategies for case prioritisation, material and expert support where possible and necessary.

Similarly, it was expressed that focusing on legal capacity building would promote post-conflict resolution and rule of law and allow local justice sectors to handle legal processes as and when circumstances permit. Although, it remains questionable whether this particular form of training can and should be provided by UN MHs.