18 Sep Anchoring Accountability for Mass Atrocities: Providing the Support Necessary to Fulfil International Investigative Mandates
[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. 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). 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]
[This blog post describes 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 contextual aspects of our research, how it came about, our research methods, and some of the most salient issues being studied by our team].
One of the most significant developments in international criminal justice in the past four years has been the establishment of a new generation of UN accountability mechanisms, e.g. 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). Significant differences in mandate, jurisdiction, resources, and operational realities distinguish these novel investigative mechanisms (NIMs) from one another. Yet, all three share an explicit (and innovative) mandate to collect, collate and analyse evidence of international crimes (committed in Syria, Myanmar, and Iraq by Daesh/ISIL respectively) according to criminal justice standards, and make this evidence available for domestic or international prosecutions.
The establishment of these mechanisms marks the culmination of a significant trend, in the past ten or so years, that we have defined an ‘accountability turn in UN fact-finding’. Indeed, over the past ten years, there has been an increased willingness of States to support resolutions within several bodies of the United Nations (among them, the Human Rights Council, which set up the IIMM, and most existing and past UN Fact-Finding Missions (FFMs) and Commissions of Inquiry (CoIs); the General Assembly, which set up the IIIM, and the Security Council, which set up UNITAD) to establish entities to investigate situations where there appear to have been serious violations of international human rights (IHRL), humanitarian (IHL), and criminal law (ICL).
This ‘accountability turn’ has meant that most mandate holders (MHs) supported by the Office of the High Commissioner for Human Rights (OHCHR) are now not only tasked with their traditional human rights investigations and reporting but also (as can be seen in the respective mandates of the CoIs on Syria, Libya, Venezuela, Burundi, North Korea, South Sudan; the Group of Eminent Experts on Yemen; and the Myanmar FFM, among others, which we collectively refer to as UN HRIs) with ‘identifying those responsible’ and laying the foundation for future criminal accountability.
These mandates can represent the only opportunity (and sometimes material effort) by the international community to collect valuable testimony and physical evidence that might otherwise be lost or compromised. Given the additional requirements and challenges set in motion for UN mandates by the ‘accountability turn’, this reason alone would have justified (and warranted), alongside more robust mandates, a considerable investment by States in support of these entities’ expertise, operations, and capacity. Yet, until the creation of the NIMs, very few MHs have been provided the resources and bandwidth to fulfil these additional requirements.
At the same time, it also appears more and more likely that the same situations of mass violence probed by UN MHs will eventually become “crime scenes” where full-fledged criminal investigations will be carried out by the prosecution authorities of international or national courts. Syria and Myanmar are, perhaps, the most illustrative examples of this, with Syria simultaneously being probed by the UN CoI, the IIIM, and domestic authorities in Sweden, Germany, and France; and Myanmar being probed by the IIMM, the International Criminal Court, and also the International Court of Justice. While human rights reporting and criminal investigations are, in several respects, different processes, it is essential that human rights inquiries and criminal investigations that seek witnesses to the same events and gather information in the same places conduct their work in ways that maximize benefits and minimize harms to both sides. Yet, the Hague and Geneva-led processes have all too often remained isolated from each other.
Even prior to the birth of this new generation of NIMs, a Group of Practitioners on Fact-Finding and Accountability (in which we both participated, and which was chaired by Ambassador Rapp) had been convened by the USHMM Simon-Skjodt Center for Genocide Prevention (CPG) and The Hague Institute for Global Justice to make recommendations to OHCHR on how existing practices of OHCHR-supported inquiries could be improved, and how the criminal justice and accountability aspects of their mandates could be better achieved. The very first recommendation of the group, finalized on January 6, 2017, was 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.
The recommendation for the creation of a Support Team was then seen as ambitious but 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. Nevertheless, thanks to the group’s engagement and inclusion of key actors, a number of its process recommendations 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.
Recommendations 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 above, there is 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. Furthermore, the birth of a new generation of NIMs has not extinguished the need for a more comprehensive solution. To the contrary, many new and especially old MHs 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 will likely grow in the future.
Besides comprehensively mapping existing challenges, the project analyses and studies a number of approaches to increasing their investigative capacity, including the creation of a permanent investigative support unit to assist all ad-hoc MHs; the establishment of a permanent global investigative mechanism; or the development of special teams that could quickly be deployed to aid inquiries and mechanisms where needed. Furthermore, we are investigating how any of such solutions would be mandated and funded; in what type of situations they would become involved; what type of technological and structural apparatus would support them; and how they would interact with other international justice actors such as ICC and domestic jurisdictions; as well as its relationship with the civil society.
As part of our methodology, we surveyed stakeholders such as domestic and international prosecutorial and judicial authorities (PAs), evidence producing organizations in the civil society (EPOs), and engaged with mandate holders (MHs),and ‘funders’ (States, donors). Organisations such as the International Commission of Jurists, Justice Rapid Response and the European Genocide Network are close collaborators in our consultations, alongside relevant international organizations such as the ICC and OHCHR. In particular, we are grateful to OHCHR for enabling the circulation of an anonymized survey the staff of relevant MHs to obtain get their perspective on these challenges.
To guide and support this research, we have also convened an Advisory Group of practitioners with experience in UN fact-finding and accountability, including current and former UN commission members, and international prosecutors. In addition, a series of high-level stakeholder meetings, convened by Oxford and partners, are scheduled to take place through the Fall, starting this week to discuss some of our preliminary findings.
We aim to publish seven more blogs in which we will discuss publicly some trends emerging from our data, as well as some of the most crucial issues we are encountering. The final outcome of our study will be published in a final report later in 2020 with our recommendations. The objective of our study is to develop evidence-based, realistic recommendations that meet these challenges while having a reasonable prospect of being accepted by States. We believe that, even if no permanent mechanism will ever be set out, it is crucial that the international community considers how, in 5-10 years, this ‘accountability-turn’ will affect the mandates of UN MHs. Crucially, any recommendations should be aimed to strengthen rather than weaken the current architecture of international justice.
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.
List of other blogs in this series:
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