Is It Time to Create a Standing Independent Investigative Mechanism (SIIM)? Part I

[Kingsley Abbott is the International Commission of Jurists’ Senior Legal Adviser for Global Redress and Accountability & Saman Zia-Zarifi is the Secretary General of the International Commission of Jurists. This is the first part of a two-part post.]

Introduction

The International Independent Investigative Mechanism for Syria and the Independent Investigative Mechanism for Myanmar are recent examples of States responding to situations where avenues for accountability for crimes under international law are otherwise limited.

Both mechanisms, created respectively through the United Nations General Assembly and the United Nations Human Rights Council (UNHRC), have mandates that extend beyond traditional human rights monitoring, documentation and reporting to include the preparation of files that can be used in national, regional, and international criminal trials.

Unsurprisingly, their establishment has led to calls for the creation of similar mechanisms to address other situations where accountability for widespread and systematic “atrocity crimes” has been elusive, such as for Sri Lanka.

As such, the ICJ and other experts have been asking at recent side events at Human Rights Council sessions in Geneva here and here whether the creation of a Standing Independent Investigative Mechanism (SIIM) might be more strategic than the ad hoc establishment of a new mechanism for each situation. We will lay out some of the arguments in favor of the creation of a SIIM below, and in the next installment address some of the real challenges and questions to be addressed in any debate about establishing a SIIM.

Potential benefits of a SIIM

Creating a SIIM is likely to have a number of substantive, political, and administrative benefits.

Substantive benefits

A SIIM would strengthen the deterrent effect to potential perpetrators, as they will know that evidence of their crimes may be subject to collection and preservation by an international investigative body, thereby increasing their likelihood of facing accountability.

A SIIM would also supplement the work of existing accountability justice systems, including the International Criminal Court (ICC) and regional and national jurisdictions, by cooperating and sharing evidence and information with them (subject to certain safeguards) that it has already collected, preserved and analyzed to a trial standard.

Where multiple actors are involved in the investigation and documentation of serious human rights violations, proper coordination is critical in order to: avoid re-traumatizing victims, minimize wasted time and resources, fulfill the “Do No Harm” principle, and to ensure that any future proceedings are not compromised through the unnecessary generation of multiple, possibly contradictory, statements.

The SIIM would ensure that critical evidence that might otherwise be lost or compromised is preserved by having already advanced an investigation to a trial standard before a justice system that might use the evidence becomes seized of a situation.

This kind of advance investigation would also reduce the costs associated with the work of existing justice systems by eliminating some of the work they would otherwise have to do once their own investigation commences.

While prosecutors in most jurisdictions would seek to gather information and interview witnesses themselves in accordance with the development of their own theory of the case, a SIIM would, at a minimum, likely provide helpful lead evidence, namely potential witnesses and other sources of evidence that have already been identified.

It would also aid national authorities to respond quickly and effectively when an alleged perpetrator visits a country in circumstances where the State is able to exercise jurisdiction, by potentially providing sufficient evidence to initiate proceedings and secure a suspect’s presence in the country while the matter is being investigated with a view to possible prosecution and trial.

A SIIM could also help develop a common set of standards for the conduct of investigations to a trial standard in consultation with the ICC, IIMM, IIIM, key national jurisdictions and other justice mechanisms, which are applied uniformly to every situation under investigation to ensure, to the extent possible, that there is a seamless transmission of relevant and reliable evidence from the SIIM to the ultimate beneficiary.

This would be particularly valuable when investigations require special sensitivity and expertise, for example in cases of alleged sexual and gender-based violence, or where children are concerned. A SIIM could even seek to establish a specialized gender and children’s unit similar to the one established by the Office of the Prosecutor of the ICC.

Similarly, a SIIM, in consultation with others, could develop a common set of standards for protecting witnesses and victims in accordance with international law and standards to ensure that witnesses and victims may contribute to the work of the SIIM without fear of retaliation.

A SIIM could (and should) also develop a robust outreach capacity and strategy to engage with all stakeholders including, primarily, victims and their families. The ability of victims’ groups and local civil society to engage meaningfully and safely with the SIIM will be critical to its success, including the value of any actual or perceived lasting contribution to accountability in any given situation.

Political benefits

Politically and practically, having a SIIM would obviate the need for spending the enormous diplomatic, organizational and financial resources required each time to establish a new ad hoc mechanism, and minimize the possibility that certain States could block or impede its creation on unprincipled grounds.

It would mean that the UN Human Rights Council and other UN bodies could use the SIIM’s existence to address more situations more efficiently, particularly where violations are ongoing in circumstances of particular urgency or crisis.

In turn, this would make the UNHRC and other UN bodies more effective at preventing the recurrence or continuation of violations.

Administrative and logistical benefits

Once established, a SIIM is likely to have significant financial cost-savings over the current approach of creating a new ad hoc mechanism for each situation.

During the start-up phase, new mechanisms go through a long period of recruitment and procurement before they can begin their core work, as has been the case with the Syria and Myanmar investigative mechanisms.

A SIIM would form a consolidated and unified administrative and logistical framework with specific expertise, experience, systems, personnel, policies and practices that would develop over time and become institutionalized, enabling it to deploy its resources promptly and effectively to address situations under its jurisdiction.

Obviously, the creation of a permanent body such as a SIIM would require appropriate and guaranteed funding, and ongoing political support in order for it to function effectively and avoid some of the issues other accountability mechanisms, including the ICC, have faced.

The Investigative Mechanisms for Syria and Myanmar have initial budgets and staffing structures that reflect the scope of their mandates.

For example, the IIMM will consist of 62 staff, including a Head at the Assistant Secretary-General level. The total 2019 budget amounts to USD 11.6 million while the 2020 budget amounts to USD 15.1 million.

There are good arguments to be made in support of establishing a SIIM, but there are also a number of serious questions, to which we will turn in Part II.