Last week, the Human Rights Council voted to establish an “independent mechanism” to collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights in Myanmar.
To those following international efforts to bring perpetrators of war crimes, crimes against humanity and genocide to justice, this watershed moment could herald a paradigm shift in how atrocities in situations such a Syria, Myanmar and Yemen are addressed.
The need for such a mechanism, at its core, stems from the need to bolster investigations and trials into the most serious crimes – both at the national and international levels.
Much has been written about the need to leverage the impact of the International Criminal Court in situations where it has jurisdiction, including a recent Human Rights Watch report, Pressure Point: The ICC’s Impact on National Justice – Lessons from Colombia, Georgia, Guinea, and the United Kingdom, which takes a stab at addressing this question.
The report proposes a range of measures by international partners of the International Criminal Court, international organizations, and civil society groups to assist national authorities to carry out effective prosecutions of international crimes, such as legislative assistance, capacity building, advocacy and political dialogue to counter obstruction.
These measures, however, overlook the more technical and evidentiary challenges that forestall national proceedings into war crimes and crimes against humanity. Most national judiciaries either lack the full capacity to conduct war crime trials in accordance with universally adopted standards, are too strapped for resources to comb through voluminous materials from human rights NGOs or victim groups regarding widespread atrocities, or lack the legal expertise to qualify criminal conduct as international crimes.
The human rights defenders that are often instrumental in advocating for accountability and triggering criminal proceedings, often themselves lack expertise in evidence-gathering techniques. This can result in information being collected in ways that does not make it court admissible. In turn, victims, often repeatedly interviewed, are disillusioned when it transpires that much of their testimony cannot stand up as probative evidence in a court of law.
Various actors have tried to tackle the reality that national criminal justice actors need assistance in carrying out investigations and trials of international crimes. 15 years ago, an early 2003 informal expert paper of the Office of the Prosecutor recognized this and contemplated the possibility of providing direct assistance and advice to national authorities seeking to undertake investigations and prosecutions complementary to its own. Direct assistance and advice was envisioned to entail the exchange of information and evidence, technical advice, training and the brokering of other assistance.
These ideas were never adopted as policy by the Office of the Prosecutor, in large part due to limited resources and a focus on its core mandate of investigating and prosecuting crimes under its jurisdiction. But in contemplating the exchange of information (as foreseen by Article 93(10) of the Rome Statute), the Office of the Prosecutor identified a potentially promising avenue for a comprehensive anti-impunity strategy, reinforcing the idea that the collection, processing, analytical, and legal qualification work being done at the international level can be an effective means of assisting investigative and prosecutorial efforts at the national level.
Organizations such as TRIAL International, Civitas Maxima, and the Center for Justice and Accountability have also taken on this work. They build cases against perpetrators of atrocities by collecting and analysing information from victims, victim associations, witnesses and other reliable sources to develop trial-ready dossiers on suspected perpetrators of war crimes. This information is then submitted to the competent authorities for further investigation and prosecution. These NGOs have brought cases to a variety of national courts – a case against Liberian warlords to US courts, a case against Syrian generals to French courts, and a case against the former Minister of Interior of The Gambia to Swiss courts. Their work is effective and impressive, but forms a disparate patchwork of cases across various jurisdictions.
Recognizing that the future of international criminal justice may lie with domestic jurisdictions, and to fill the accountability gap in Syria, the United Nations General Assembly adopted resolution 71/248, establishing 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 (the “IIIM”). The IIIM for Syria was set up in December 2016 to perform two functions. First, to collect, consolidate, preserve and analyse evidence of violations. Second, to prepare files in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law. The IIIM for Syria has been welcomed by national prosecutors.
The IIIM model is an innovation borne out of desperation – no realistic prospect of effective national prosecutions in the near future, lack of ICC jurisdiction, and no path toward it due to a blocked Security Council. (Efforts to unblock the Security Council have also failed). But it also shows a way forward in other situations, where the ICC, ad hoc or hybrid tribunals may have jurisdiction, but where they have not been able to trigger national proceedings in country or in other countries with jurisdiction. It would also benefit the pursuit of accountability by focusing the efforts of a wide spectrum of actors, between domestic civil society, international NGOs, UN human rights components of peacekeeping missions, dedicated monitoring missions, fact-finding missions, commissions of inquiry, and Special Procedures mandates, all of which – to varying degrees – assist national efforts to bring perpetrators of grave violations to justice and assist victims in seeking and obtaining remedies for these violations.
A standing IIIM would also form a UN system-wide hub for accountability, including through standardizing how UN evidence is recorded and preserved. It would also aid the International Criminal Court, both in taking on the bulk of the work in sifting through material to identify credible sources, but also in contributing to case selection through identifying where a critical mass of evidence leads. The case of Myanmar, where the Prosecutor has limited jurisdiction, will serve as a test case for how the two institutions will co-exist and cooperate.
Discussions have already started on the side-lines of the UN Human Rights Council and in media about how a standing or permanent body modelled after the IIIM for Syria and Myanmar could be the missing link that operationalizes the notion of complementarity by creating an investigation assistance mechanism to bolster the capacity of domestic jurisdictions to take on international crimes.
By coordinating effectively with national jurisdictions, civil society and other international actors, a standing Mechanism can play a role in promoting a more comprehensive and integrated accountability strategy. That strategy recognizes the combined role of multiple jurisdictions in ensuring an appropriate measure of justice for the widespread crimes, and is necessary to advance the collective obligation to fight against impunity for international crimes.