Structural Challenges Confronted by UN Accountability Mandates: Perspectives from Current and Former Staff (Part II)

[Sareta Ashraph is a Visiting Fellow of Practice with the Oxford Programme on International Peace and Security, Institute for Ethics, Law, and Armed Conflict (ELAC), Oxford Blavatnik School of Government; she is a barrister with Garden Court Chambers; and the Co-Vice Chair of the IBA War Crimes Committee; 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.]

[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 the fifth in a series of ten, presents the analytical findings of an anonymised survey of 103 former and current staff of UN mandate holders with a focus on accountability.].

In this post, we continue our discussion of the preliminary analytical findings of an anonymised online survey of 103 former and current staff of UN mandates with a focus on accountability. The survey is part of the methodology of a research project being led by the Oxford Programme on International Peace and Security, in partnership with the International Bar Association and the US Holocaust Memorial Museum Simon Skjodt Center for the Prevention of Genocide, looking at how UN human rights mandates affected by an ‘accountability turn’ (meaning, increased prominence in their mandates of accountability-related requirements, such as the identification of perpetrators, or laying the foundation for criminal accountability) can be best supported on a permanent basis.

The survey, which I conducted between August and mid-October 2020, was distributed to staff holding specific positions within UN Fact-Finding Missions (FFMs), Commissions of Inquiry (CoIs), and novel investigative mechanisms (NIMs) – meaning the International, Impartial and Independent Mechanism for Syria (IIIM), the International Independent Mechanism for Myanmar (IIMM), and the UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) – including investigators, analysts, legal advisers and coordinators (the respondents).

The survey asked respondents to indicate the strength of their agreement or disagreement with 43 statements built around five core topics: (i) recruitment; (ii) investigations; (iii) legal analysis and case identification; (iv) analysis, preservation and storage of electronic and physical information and evidence collected; (v) commonly used policies procedures and forms. Finally, they were also asked their views on the efficacy/desirability of the permanent investigative support unit, a recommendation that our project’s Advisory Group of Practitioners already made in 2017 to the previous High Commissioner (see here, recommendation 1). Respondents also could avail themselves of free text boxes if they wanted to explain their responses or their perspectives in greater detail. This post discusses results of our survey concerning: investigations; legal analysis and case identification; analysis, preservation and storage of electronic and physical information and evidence collected; commonly used policies procedures and forms; their views on the efficacy/desirability of the permanent investigative support unit. A first post discusses results of our survey on staff recruitment and training. In previous posts, we also introduce the preliminary findings of 57 interviews with civil society groups documenting international crimes, and domestic and international prosecutorial and judicial authorities interfacing with these mandates, which we carried out to understand the ‘upstream’ and ‘downstream’ challenges faced by these mandates.

Investigations

When it came to investigations, only 13.48% of respondents strongly agreed that their mandate had a sufficient number of investigators with experience of investigations directed towards criminal accountability. In a similar vein, only 11.24% strongly agreed that investigators had experience conducting interviews, where the notes would be used in criminal proceedings; 10.11% strongly agreed that the investigators had experience in recording chains of custody. Some of the respondents working with CoIs and FFMs emphasised that they did not regard these particular UN mandates as having mandate directed towards criminal accountability, a sentiment which is shared by critical scholarship on the matter, and so were neither surprised nor concerned that the investigators did not have this particular experience.

Areas where respondents indicated investigators did not have relevant expertise include: conducting financial investigations; tracking the movement of persons of interest; preserving metadata of information or evidence in electronic form; and the investigation of crimes against or directly affecting children. There was more confidence in the ability of the investigation team members to investigate sexual and gender-based violence and to conduct gender-sensitive interviewing. In the more detailed comments, we also saw a departure between the perspectives of those working for NIMs as opposed to those working for CoIs or FFMs. In the NIMs there was emphasis on having a specific multi-person unit or an adviser working on gender-based crimes and crimes and crimes against children (UNITAD, IIMM) or having gender experience distributed across the team (IIIM). In the CoIs and FFMs, several respondents stated that while there was usually an SGBV advisor, the individual was supplied by UN Women and Justice Rapid Response, often changed with each mandate, and that particular expertise resided with that individual, and not shared by the wider team, thus risking a silo-eing of sexual and gender-based violence expertise.

Legal analysis and case identification

When it came to legal analysis, respondents displayed more confidence that their legal analysts and advisers had a sufficiently strong background in international criminal law, with 36.36% strongly agreeing and 51.14% somewhat agreeing. (This may reflect the number of respondents who held those positions). Only 11.36% and 17.05% agreed (strongly and somewhat, respectively, that their MH had sufficient number of legal analysts and advisers to liaise and oversee proper disclosure of information to international and national justice mechanisms. For a number of respondents who are worked or who had worked in CoIs and FFMs, they emphasised that the legal advisors/ analysts often also performed the role of the of the reporting officer: “These tasks leave less time to concentrate on legal advising, especially providing regular feedback to the investigation team on gaps and inconsistencies in the information collected.”

Analysis, preservation and storage of electronic and physical information and evidence

For those working in CoIs and FFMs, very few agreed that the database was designed to analyse complex crime scenes and link crimes to alleged perpetrators – though, again, some respondents emphasised that this was not the core mandate of CoIs and FFMs. Respondents expressed frustration with CoI and FFM use of Microsoft Sharepoint as a database, with one stating “this cannot replace a professional database designed to assist analysis.” With regard to the preservation and storage of documentary and electronic evidence, multiple respondents attached to CoIs and FFMs stated that they were told not to collect original material, with serious implications for maintaining chain of custody.

Commonly used policies, standard operating procedures, and other operational guidance

Respondents were also asked about: Chain of Custody Protocols and Forms; Policy on Documentary Information Collection and Storage; Policy on Electronic Information Collection and Storage; Standard Operating Procedure on the Conduct of Interviews; Standard Operating Procedure on the Conduct of Interviews with Child Survivors and Witnesses. Respondents reported that these were either drafted by the entity themselves or were never drafted. Worryingly, 65.12% of respondents stated that no information about secondary or vicarious trauma was never drafted or did not exist.