Building permanent support for UN mandated investigations

Late this afternoon of May 19, in Room XXIII of the Palais des Nations in Geneva—a cool respite from the brutal outside heat—Stephen Rapp, former US Ambassador at Large for Global Criminal Justice and former prosecutor in Rwanda and Sierra Leone, could not resist sharing a joke before moving to the grave matter at hand: “I used to say that ‘at large’ is what I have in common with fugitives, [they] are ‘at large’ and on the run because of the law! But I want to see the law enforced, because the massive violations that we see across the planet, the crimes against humanity, the war crimes, and genocide in some cases, cannot remain unpunished. If you commit these massive crimes, don’t think that you can get away with it. This is what this is all about.”

Before him, the German Ambassador to the UN in Geneva, Katharina Stash, had told the audience that “strengthening accountability and fighting impunity is a huge challenge, but […] justice is a precondition for reconciliation, stability, and peace. As a German, I know what I am talking about.”

The two were among thirteen distinguished panelists gathered here to launch a new research paper ‘Anchoring Accountability for Mass Atrocity: Permanent Support is Needed for UN Investigative Mandates’.

Years in the making, the report is the result of a partnership between the University of Oxford’s Institute for Ethics, Law and Armed Conflict (ELAC), the International Bar Association (IBA) and the Simon Skjodt Center for the Prevention of Genocide (CPG), of the US Holocaust Memorial Museum.

“This research paper,” write its two main co-authors, Stephen Rapp and Federica D’Alessandra, “examines the role of UN investigative mandates in probing serious violations of international human rights, humanitarian and, increasingly, international criminal law, as well as their role within the broader international justice ecosystem. (…) As its main recommendations, this study presents two chief options for building permanent support for UN mandated investigations and their contributions to international justice:

Option 1, the establishment of a standing, independent UN investigative support mechanism (ISM) empowered to provide a range of services to all UN investigative mandates concerned with accountability […] and Option 2, the establishment of a permanent investigative support division (ISD) within the Office of the High Commissioner for Human Rights (OHCHR) to assist Human Rights Council-mandated investigations and to provide support where relevant to case-building mandates when these are conferred independently of OHCHR.”

“The challenges faced by UN investigations are far-ranging,” write Rapp and D’Alessandra. “Examples include differing standards of operation between evidence-providing organizations on the ground; differing political and legal expectations, capacities, and legal requirements; and inconsistencies in data management and analysis processes even between UN bodies.

“Another theme emerging from our data is the important role UN investigative mandates can play in conducting open-source investigations and leveraging other forms of digital and documentary technologies to support the work of those on the ground. (… )A recurrent refrain from those interviewed for this study concerned the modernisation of UN investigations supported by OHCHR such that they are truly able to handle the challenges and opportunities offered by the digital revolution.”

The independent investigative mechanisms on Syria, Myanmar and Daesh/ISIL have demonstrated their capacity to collect, analyze and corroborate existing information coming from different actors, including civil society.

Such an independent standing investigative support division would do two things, explained Rapp: “It could receive mandates like Syria and the Myanmar mechanism, given to them by a UN body in order to do the work. Or it could provide support to other mandates. It could do what the Office of the High Commissioner for Human Rights cannot do.”

“This demand for justice is very loud, and cannot be ignored,” Sam Zarifi, Secretary-General of the International Commission of Jurists, told the audience. “There is a clear sense of breakdown in the international legal order; a sense of greater conflict and of greater impunity. We can draw a line from what happened in Sri Lanka, to Syria, to Ukraine […] and therefore, [there is a] need for accountability for them to stop. Why is there not justice for all of these horrible things happening? Accountability matters. If you want to prevent atrocities, you have to punish the perpetrators. If you want to be serious about having an international legal order, you have to have a rule of law that addresses the commitments that States make very solemnly in rooms like this. And part of those commitments is that when human rights are violated, there will be justice.”

Germany is expected to make the case to the G7 for the standing mechanism advocated by the report. Liechtenstein was a co-sponsor of the event. With the recommendations now in the open, the process has just started. We will follow it.