Over the past ten years, there has been a dramatic shift in the willingness of bodies within the United Nations - among them, the Human Rights Council, the General Assembly, and the Security Council to direct and, increasingly, to establish entities to investigate, analyse, and engage in case-building in situations of mass atrocity - where war crimes, crimes against humanity, and genocide are alleged to be taking place. Often referred to as "an accountability turn in human rights fact-finding" (D’Alessandra, 2017), UN Commissions of Inquiry (CoIs) and Fact-Finding Missions (FFMs) are now not only tasked with human rights investigations and reporting but also - as can be seen in the respective mandates of the Commissions of Inquiry on Syria, North Korea, South Sudan, and Myanmar - with identifying perpetrators where possible and laying the foundation for future criminal accountability.
In December 2016, a new generation of specifically-mandated entities was born, with the General Assembly's establishment of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, known as the IIIM but also referred to as the Syria Mechanism. This was swiftly followed by the Security Council, in its resolution 2379 (2017), setting up the United Nations Investigative Team to promote Accountability for the crimes committed by Da'esh (UNITAD). Most recently, in September 2018, the UN Human Rights Council established the International, Independent Mechanism for Myanmar (IIMM).
The consecutive establishment of these ad hoc mechanisms, each with its own focus and each largely walled off from the other, has re-ignited discussions on how to improve efficiencies and maximise outputs against a background of scarce resources and competing priorities. Even prior to the birth of this new generation of mechanisms, a Group of Practitioners on Fact-Finding and Accountability had been convened to make recommendations to the OHCHR on how existing practices of OHCHR-supported inquiries could be improved, and how the criminal justice aspects of their mandates could be better resolved. Many of these recommendations found their way into the Terms of References (ToRs) of the new generation of mechanisms, although not all of them.
For example, one of the recommendations that had been received by the High Commissioner H.E. Zeid Ra’ad al-Hussein was for the establishment of a dedicated investigations-support team within OHCHR, to be led by a D-1 level post. Even though the post was to be funded through voluntary contributions, the proposal required approval of the UN’s Advisory Committee on Administrative and Budgetary Questions (ACABQ). Despite strong support within the ACABQ, some members from human rights resisting states objected with the argument that the post should be funded from the regular budget. As a result, the necessary consensus failed to be achieved in October 2018.
Nevertheless, the birth of a new generation of dedicated ad hoc mechanisms has not extinguished the need for a more comprehensive solution. To the contrary, many new and especially old inquiries/mechanisms continue to face the same challenges. For this reason, interest in achieving a more comprehensive solution will likely grow in the future. There is thus a need to provide evidence-based, realistic and cost-effective recommendations that have a reasonable prospect to be accepted by all (or at least a majority of) member states, not on ideological grounds but for the sake of improving efficiencies.
Besides comprehensively mapping the challenges currently confronted by mechanisms protagonist of the ‘accountability turn’, this project will also analyse and study a number of approaches for increasing investigative capacity, including the establishment of a permanent global investigative mechanism, the creation of a permanent investigative support unit to assist all mandated inquiries and mechanisms, or the development of special teams that could quickly be deployed to aid inquiries and mechanisms where needed. If it is decided that there is the need for permanent investigative or support entity then it would be necessary to answer other questions: how would such an entity be created, funded, and operationalised; in what situations would it be involved; how would it interact with other international justice actors, including the international criminal court and domestic jurisdictions; its functions; and its relationship with civil society and victim organizations.
The research will be carried out under the auspices of IPS Director Federica D’Alessandra, and Visiting Fellows Ambassador Stephen Rapp and Sareta Ashraph, with the support of the Simon Skjodt Center for Genocide Prevention, and in partnership with the International Bar Association War Crimes Committee and Human Rights Institute. To guide and support this research, IPS has also convened an Advisory Group of high-level practitioners with experience in UN fact-finding and accountability, including international prosecutions. IPS has already launched an anonymous survey among practitioners working in the relevant bodies dedicated to atrocity prevention and punishment identified above. In addition, three high-level stakeholder meetings are scheduled to take place between 2020 and 2021.
As part of its methodology, IPS is engaging with stakeholders such as ‘end-users’ of the evidence generated by these mechanisms (domestic and international prosecutorial and judicial authorities), ‘suppliers’ (groups collecting and collating documentation of atrocities), and enablers (States, donors). Organisations such as the International Commission of Jurists, Justice Rapid Response and the Eurojust Network for the Prosecution of Atrocity Crimes are close collaborators in our consultations, alongside relevant international organizations such as the International Criminal Court (ICC). We also seek the input of the UN Office of the High Commissioner for Human Rights (OHCHR) and regularly brief the Office on our progress.
You can read more about our preliminary findings in a series of blog posts published on Opinio Juris:
- Anchoring Accountability for Mass Atrocities: Providing the Support Necessary to Fulfil International Investigative Mandates (18 September 2020)
- Anchoring Accountability for Mass Atrocities: Perspectives from the Civil Society (19 September 2020)
- Anchoring Accountability for Mass Atrocities: Perspectives from Prosecutors (19 September 2020)