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

[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 second part of a two-part post. Part I can be found here.]  

Some important questions

In the previous installment we raised some of the arguments in favor of creating a standing international investigative mechanism (SIIM) that could help documentation of crimes under international law in order to assist accountability mechanisms at the national, regional, and global level.

The prospect of creating a standing international investigative mechanism raises a range of important questions, which include:

1. What should the scope of its subject matter jurisdiction be?
2. What would its relationship be with inter-governmental body created independent investigations?
3. How should a situation be referred to the SIIM?
4. With whom and for what purposes should the SIIM share files?

Subject matter jurisdiction

A SIIM’s subject matter jurisdiction could simply cover the same crimes listed in the Rome Statute (Genocide, War Crimes, Crimes Against Humanity and Aggression).

But serious consideration should be given to extending it to other serious human rights violations that amount to crimes under international law including extra-judicial killings, torture and enforced disappearance where, for example, they meet a certain threshold.

One possibility might be where these violations are perpetrated on a widespread or systematic basis – not necessarily requiring an “attack on a civilian population with knowledge of the attack”, but rather applying the notion of “gross, systematic and widespread” violations within the meaning of human rights practice.

Other formulations are possible, but an issue to be borne in mind is that the broader the mandate of a SIIM, the less politically viable it may become and the greater its investigative burden, with the attendant time and costs associated.

The SIIM and inter-governmental body created independent investigation

In many situations where serious human rights violations have been, or are being, committed, including when an accountability gap exists, the approach by States, under UN auspices, has been to create an ad hoc commission of inquiry, fact-finding mission or investigation.

In the past, these have been created by the United Nations Security Council (UNSC), the UNGA, the UNHRC (and its predecessor, the Commission on Human Rights), the Secretary-General and the High Commissioner for Human Rights.

Recent examples include:

• 2018 Commission of Inquiry on the 2018 protests in the Occupied Palestinian Territory;
• 2017 Group of Eminent Experts for Yemen;
• 2017 Fact-Finding Mission for Myanmar;
• 2016 Commission on Human Rights in South Sudan;
• 2016 Commission of Inquiry on Burundi; and
• 2011 Independent International Commission of Inquiry for Syria.

The specific mandates of each of these bodies have varied, but they all involve some evidence-gathering and fact-finding roles aimed at generating findings and recommendations upon which States acting through the UN or otherwise may determine their course of action.

In the past, such bodies generally have not had explicit mandates to gather and collate evidence with a view to creating files for eventual use in criminal proceedings, but they serve an essential role in responding to and preventing human rights violations.

Rather than removing the need for the ongoing creation of these bodies, a SIIM should complement and build on their more general fact-finding and recommendation functions, by conducting investigations to a trial standard and collating evidence that can be used in criminal proceedings.

The SIIM should cooperate with these independent investigative bodies, where appropriate.

Indeed, such mechanisms could help identify situations appropriate for the SIIM to investigate, and they will, in any event, continue to play a role around recommendations on a full range of issues broader than accountability, such as how to bring the violations to an end, how to change laws and policies to address underlying causes of violations – and, critically, to ensure remedies and reparations for victims of violations, beyond criminal accountability.

Referral

A key question is how should a situation be referred to a SIIM?

It is likely that inter-governmental bodies such as the UNHRC and the UNGA should have the power to refer situations to the SIIM either on their own initiative or on the recommendation of an independent investigative body or other independent sources (the Security Council can of course always refer a matter directly to the ICC).

However, in order to avoid creating a point of potential political blockages – such as has been witnessed at the UNSC when it has been called upon to exercise its Chapter VII powers to refer a situation to the ICC – it may be that the SIIM also should have the power to self-refer and initiate investigations if certain criteria are met.

For example, the Prosecutor of the ICC has power to initiate investigations under the Rome Statute if, on the basis of information received, there are reasonable grounds to believe that crimes within the jurisdiction of the Court have been committed (article 15 of the Rome Statute).

Other referral options could include the:

• High Commissioner for Human Rights; and/or
• a specially created independent body/panel/board (independent of the SIIM and other inter-governmental bodies) which has the power to consider situations and make referrals.

Lessons on how to effectively bring situations before the SIIM should be learned from the International Humanitarian Fact-Finding Commission (IHFFC), which is the only permanent international fact-finding body with a specific mandate to investigate violations of IHL, but which has not been fully utilized since its establishment by article 90 of the Additional Protocol I (1977) to the Geneva Conventions (AP I).

With whom and for what purpose should the SIIM share files?

The respective Terms of Reference of the IIMM and the IIIM set out the circumstances in which they will share their files.

A SIIM might consider following similar criteria to that contained within the TOR of the Syria IIIM, for example:

20. The Mechanism will share information with national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law, in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards. The Mechanism may share information either at the request of national, regional or international courts or tribunals, or on its own initiative. It is anticipated that the Mechanism will generally not share information in circumstances in which a trial may be held in absentia on the basis of universal jurisdiction.

21. The Mechanism will share its information only with those jurisdictions that respect international human rights law and standards, including the right to a fair trial, and where the application of the death penalty would not apply for the offences under consideration.

However, how the IIIM (and IIMM whose criteria is similar) will implement these criteria in practice is not yet settled and requires further examination and probably the addition of significant safeguards to protect fundamental rights.

There is the possibility that certain States may seek information from the SIIM for purposes inconsistent with human rights and the rule of law.

Consideration may also be given to enlarging the kinds of proceedings a SIIM would share information to support – such as certain non-criminal proceedings – although an overly broad expansion of its sharing mandate risks heightening political resistance to the creation of the SIIM, make its workload more complex and onerous, and even potentially open the process to abuse by States, as set out above.

There are a number of questions and concerns surrounding the creation of a SIIM, and very serious political obstacles to any such effort, but we believe the time for addressing these challenges has come.