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

[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. 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. 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).]

[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 sixth 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 [Part I and Part II] of the preliminary analytical findings of an anonymised online survey of 103 former and current staff of UN mandates with a focus on accountability. 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 their ‘upstream’ and ‘downstream’ challenges. 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 was conducted between August and mid-October 2020 by Sareta Ashraph, was distributed to staff holding specific positions within UN Fact-Finding Missions (FFMs), Commissions of Inquiry (CoIs), and novel investigative mechanisms (NIMs) – meaningthe 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; (ee here) (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. (See here). Respondents to our survey also could also avail themselves of free text boxes if they wanted to explain their responses or their perspectives in greater detail. Finally, respondents were also asked their views on the efficacy/desirability of the permanent investigative support team/unit (PISU), a recommendation that our project’s Advisory Group of Practitioners already made on January 6, 2017 to the previous High Commissioner (see here, recommendation 1). The recommendation suggested to:

Establish a small, specialized Support Team (ST) in the Office of the High Commissioner for Human Rights (OHCHR). The ST would assist in the prompt recruitment and deployment of effective and well-resourced teams as required for HRIs.  It would serve as a repository of institutional memory and achieve efficiencies by standardizing the preparatory processes and drafting investigative plans for each HRI.   The ST would support the HRIs in the following areas: budget preparation, administration, staff recruitment and training, identification of experts, and information management.  It would also include capacity for the management of information and archives, including for HRIs that have completed their work, and for liaison between HRIs and UN bodies and other entities in order to make and respond to requests for information and other assistance.

This recommendation for the creation of a permanent investigative support unitwas part of a larger set of recommendations which, thanks to our engagement with (and inclusion of) key actors, were incorporated in the Terms of Reference (ToR) of the IIIM, which had just been established, and subsequently included in the ToRs of UNITAD and IIMM.

The specific recommendation for the establishment of a PISU was already then seen as ambitious when we first made it in 2017. However, it was incorporated in a personnel budget proposal presented by High Commissioner Zeid Ra’ad al Hussein. This proposal was blocked by the UN’s Advisory Committee on Administrative and Budget Questions (ACABQ) and the initiative shifted to the priority of achieving adequate funding for the IIIM.

This recommendation lay dormant until, after the subsequent creation of UNITAD and the IIMM, some calls arose for the establishment of a permanent investigative body (see here, here, and here). In light of these calls, and especially the challenges set out in this blog post series, our Oxford team felt that there was a need to provide evidence-based, realistic and cost-effective recommendations on how the international community may improve efficiencies and maximise outputs against a background of scarce resources and competing priorities.

This need was only strengthened with the birth of a new generation of NIMs, as these have not extinguished the need for a more comprehensive solution. To the contrary, many new and especially old UN mandates continue to face the same challenges, including structural issues, drawn-out recruitment procedures, and challenges in interfacing with judicial authorities, and in outreach to the civil society. For this reason,interest in achieving a more comprehensive solution, which builds on the improvements made with, and lessons learned from the NIMs, will likely grow in the future.

A key question we asked ourselves was how we would we be able to hear from those working within these mandates, whose voices are least heard, but whose perspectives are crucial to lessons learned. It is to hear from them that we conducted the survey set out above.

UN Staff views on the efficacy/desirability of a permanent investigative support unit

(Click here to view a larger image of the study results).

When it came to the suggestion of establishing a permanent investigative support unit (PISU) with similar functions as outlined above, 52.87% of respondents strongly agreed and 35.63% somewhat agreed that a PISU would be helpful in providing a start-up team of experienced investigators and legal analysts/ advisers while the UN mandates’ initial recruitment is in progress. 82.76% agreed (of which 39.08%, strongly) that a PISU would be helpful in providing targeted trainings to team members with skills and knowledge gaps. A similar number agreed that the PISU could also have a mentoring function. 95.41% agreed (of which 65.52%, strongly) that it would be useful for a PISU to be responsible for tasks common to various entities, such as the drafting of policies, procedures and forms.

91.96% agreed (of which 63.22, strongly) that a PISU could provide stand-by specialist expertise – for example, on financial investigations, suspect tracking, crimes against children– to multiple concurrently-existing entities on request, while 90.81% (of which 62.07%, strongly) agreed that a PISU could provide investigative and analytical surge capacity to entities on request. One respondent stated, that a PISU “could provide the consistency, efficiency, and essential contemporary capabilities that should really be expected of these kinds of institutions.” In fact, only 9.30% strongly agreed that a PISU would not be useful.

Yet, many questions remain in terms of how could such a PISU be established; precisely what functions it would dispense; where it would sit; and how it would be funded, among others that we are investigating. Please continue to look out for periodic updates on this research, and consult our project’s web page, where we also post regular updates. We invite you to follow our work, get in touch with us for more information, and to learn how you can support our research in the months ahead.