United Nations Investigative Mechanisms

UN Investigative Mechanisms

Independent International Commission of Inquiry on the Syrian Arab Republic

Let's talk about the UN investigative mechanisms.  

In August 2011, in response to the conflict and the crimes taking place in Syria, the UN Human Rights Council formed the Independent International Commission of Inquiry on the Syrian Arab Republic. This commission of inquiry was established to investigate and establish the facts and circumstances of human rights violations taking place in Syria. 

The Human Rights Council repeatedly extended the mandate of this commission of inquiry, yet its reports were not making the impact needed to push through the political impasses at the UN Security Council.  In fact, the UN Security Council had been unable to act on the issue of accountability for crimes committed in Syria, largely because of the role of Russia. 

International Impartial and Independent Mechanism

Then, in an unprecedented move on the 21st of December 2016, the UN General Assembly established the International Impartial and Independent Mechanism to assist in the investigation and prosecution of those responsible for the most serious crimes under international law committed in the Syrian Arab Republic since March 2011. This very long winded name came to be known as the IIIM. 

As the General Assembly does not have the mandate to create a body that can prosecute crimes, like the UN Security Council does under its Chapter 7 powers, it established the IIIM to collect information and safeguard evidence for future use.  The mechanism's first task of collecting, consolidating, preserving, and analyzing evidence of violations appears very similar to the mandate of the commission of inquiry.

Yet, it is the second mandated task where it differs.  The IIIM is also mandated 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 have future jurisdiction over those crimes in accordance with international law.”  

Accordingly, IIIM is meant to be complementary to the commission of inquiry but has a greater persecutorial focus.

UNITAG

Following the creation of this innovative mechanism, in 2017, the UN Security Council established the UN Investigative Team to promote accountability for crimes committed by the Daesh and Islamic State in Iraq and the Levant. 

Like the IIIM for Syria, UNITAG's mandate is to collect, preserve, and store evidence of acts that may amount to war crimes, crimes against humanity, and genocide.  The mandate also includes the objectives of building case files for prosecution and engaging with victims to ensure their involvement in the investigation. 

Independent Investigative Mechanism for Myanmar

Similarly, in September 2018, the UN Human Rights Council established an Independent Investigative Mechanism for Myanmar known as the IIMM.  

Importance of these Mechanisms

These new investigative bodies represent noteworthy developments in serious crimes investigations with their persecutorial focus and recourse to innovative technologies. 

The divergence away from general fact finding missions will likely have a significant impact on the international and domestic investigation and prosecution of international crimes.  

Work of the Mechanisms

So what has the IIIM been doing?  

It files biannual reports to the General Assembly, and through these we can learn a great deal. 

We know that the IIIM uses international criminal law standards for its documentation and investigation work in order to maximize the prospects for the material to be admissible in a court of law.  It has created a central repository of information collected for analysis to build case studies and case files. 

The mechanism supports the work of no less than 10 national jurisdictions that are currently investigating crimes committed in the Syrian context and have responded to at least 46 requests for assistance.  It has concluded 42 cooperation agreements with relevant partners, ranging from states to NGOs, and it has engaged with more than 180 sources and holds more than 2 million records. 

And what about UNITAD?  

UNITAD is different from the IIIM and the IIMM in that it operates and has offices in the country where it is carrying out investigations, namely Iraq.  There are key benefits to working so close to the communities affected by the crimes. But the security situation in the country over the years has also negatively impacted its investigation work. 

Through its reporting and press, we know that UNITAD has cooperated closely with Iraq, Finland, and numerous civil society actors, and has already identified around 160 suspects who could potentially face prosecution.  

Interestingly, potential prosecutions for crimes against humanity or genocide  unlike, for example, the crime of terrorism, will need to take place outside of Iraq, away from the victims and territory where the crimes took place.  This is because, contrary to international human rights law, Iraq continues to maintain the death penalty.  

Moreover, Iraq has not criminalized crimes against humanity or genocide in its domestic criminal code, which is why it is able to carry out domestic prosecutions on the crime of terrorism, but crimes falling under UNITAD's mandate will need to be prosecuted outside of Iraq.  

While Iraq can continue with its domestic prosecutions for terrorism, an arguably easier crime to prosecute than crimes against humanity or genocide, prosecutions for crimes over which UNITAD's mandate falls must be prosecuted elsewhere.  

The UNITAD team has collected over 23 terabytes of data. This is a lot. And it has carried out cutting edge forensic investigations in the field using 3D laser scanning, 3D modeling, and 4K aerial imagery. We can really see the use of technology in their investigation efforts. 

The IIMM is working closely with a fact finding mission on Myanmar, the FFM, and other actors involved in documentation and investigation work from civil society organizations to states such as Argentina that are pursuing accountability and the International Court of Justice, which has a case before it against Myanmar brought by the Gambia. 

The mechanism is working closely to establish a regular interactive dialogue with victims, civil society, and the public in Myanmar, in the region, and beyond. It has also set up a digital infrastructure to collect and analyze the large amounts of information that it is receiving.  So as you can see, there is a lot taking shape.

These are a new type of institutional response to serious international crimes, and perhaps we will see more of them in the future.