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

[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).  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. 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 the preliminary findings emerging from our interviews with national and international investigative and prosecutorial authorities].

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 other stakeholders, with domestic and international prosecutorial and judicial authorities (PAs), and ‘evidence-producing organisations’ (EPOs) 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. In our last post (2/8), we discussed the preliminary findings from our interviews with 34 EPOs, and some general observations emerging from our research.

In this post, we will discuss the preliminary findings emerging from interviews conducted by Ambassador Stephen Rapp, on behalf of our team, with 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.

An evolving landscape

In our last post, we reported that many actors increasingly think of a landscape where information flows in streams that originate with the EPOs, pass through and are processed by the MHs (particularly the NIMs), and arrive in some form at thePAs.  

In particular, with the rise of ‘service-oriented’ EPOs, the ecosystem is evolving towards greater reliance of both MHs and PAs on the work of EPOs, an increase in the direct relations between the EPOs and PAs, and an increasingly symbiotic relationship between EPOs, MHs, and PAs. This has been facilitated by an increasing focus by EPOs on information that meets forensic investigative standards, and more reliable, useful material for use in courtrooms.

Of course, challenges remain. Some PAs noted, for example, that advocacy efforts and published findings by EPOs have at times caused significant problems at trial (including the reversal on appeal of a conviction and life sentence for international crimes due to an NGO’s premature public reporting). Furthermore, almost all PAs commented on the importance of professionally conducted witness interviews, and the challenges of EPOs taking testimony.

Nevertheless, many of the EPOs and PAs indicate that they will continue these direct relations in the future, but they uniformly recognise the value of UN MHs for consolidating, verifying, and analysing information from all sources and for facilitating the successful pursuit of the most impactful cases by the PAs. All of them were looking to NIMs, among MHs, to help achieve these ends.

PAs perspectives on EPOs

PAs recognise EPOs’ work as essential to foreign authorities without access to crime sites. We observed a definite trend towards greater collaboration and mutual trust. Furthermore, EPOs that have invested and benefitted from stronger technical support and operational capacity are seen by PAs as much more responsive and professional than in the past, and as sharing the same accountability goals of national authorities. This alignment of goals has led to greater cooperation between EPOs and PAs, with an emphasis being put by PAs on the quality of information gathered by EPOs rather than quantity.

In particular, PAs were full of praise for EPOs that helped them find verifiable documents (Commission on International Justice and Accountability) and digital data (Bellingcat) that link crimes and alleged perpetrators, as well those that assist them in identifying suspects (Syria Center for Media and Freedom of Expression, and the Association Study of War Crimes) and accessing victims and witnesses (European Center for Constitutional and Human Rights and Civitas Maxima) for investigations and trials. (A range of other local EPOs that were commended by PAs for their professionalism and contributions to investigations are not  named here for their security.)  

Furthermore, PAs stated a high interest in receiving documentary and digital information together with indicia of its reliability from EPOs, in part because of a preference for this kind of evidence over witness testimony.  They also communicated a need for increased training of EPOs in best practices.

As expected, PAs raised concerns with regard to EPOs taking witness statements directly, and stated a preference for EPOs’ identification of potential witnesses by their presence at a particular crime scene, and willingness to assist, with an overwhelming interest in means for PAs to contact directly EPOs witnesses active in the sites of their investigations.

PAs perspectives on MHs, including NIMs

Awareness of UN bodies appears to be increasing amongst national prosecuting authorities. While many of those interviewed expressed dissatisfaction with the timeliness, efficiency, and cooperativeness of older UN bodies, they almost unanimously emphasised increasing satisfaction with the focus of the ‘novel investigative mechanisms’ (NIMs), that is the IIIM, IIMM, and UNITAD.

In particular, the IIIM’s proactive engagement with states received significant attention, with one senior prosecutor commending the proactive supplementation of information without request. The IIIM currently stands out for gaining a reputation for its cooperative, ‘solution-oriented’ approach, marking a shift from the disobliging, bureaucratic reputations of some other UN bodies.

A very clear issue that arose for all PAs was the integrity of evidence collected by some MHs, including ‘unprofessional’ statement-taking and the consequences for use at trial. PAs have expressed general frustration with obtaining information from more traditional MHs, citing convoluted processes, heavy redactions that undermine utility (even when witnesses have consented to material being shared), low quality of information, poor interview techniques (including leading questions), disorganised archiving leading to difficulties in locating material, and failures to implement basic chain of custody procedures. It has been repeatedly noted that the IIIM marks a sharp improvement. It is anticipated that other NIMs will continue to remedy these concerns.

National investigators also emphasised the need for solid witness evidence (i.e. properly recorded and with consent to be shared with authorities), and a preference for contact details of witnesses or reliable individuals in-country being provided by MHs, such that PAs could organise and perform the interviews themselves.  

Interviewed PAs also expressed interest in analysis of context, available material, organisational information, and ‘on the ground intelligence’ being prepared by MHs to a judicial standard.

Understandably, all PAs shared a clear desire for linkage evidence, especially documentary and digital evidence that has been subject to rigorous forensic examination and verification. For cases arising out of Syria, Iraq, and Myanmar, all of the PAs were looking to the NIMs (IIIM, UNITAD, and IIMM) to help achieve these ends.