Anchoring accountability for mass atrocities

ELAC report
Abstract

The permanent support needed to fulfil UN investigative mandates

UN investigations of serious violations of humanitarian law and human rights law play a crucial role in upholding internationally recognised standards and fighting impunity for the worst breaches of international norms. Over the past ten years, the Human Rights Council, the General Assembly, and the Security Council have directed and, increasingly, established entities to investigate such violations and make findings that directly support accountability, including of the criminal nature, in situations of mass atrocity. The consecutive establishment and high performance of three independent UN investigative mechanisms (IIIM, IIMM and UNITAD), in particular, have demonstrated the crucial role that UN mandates can play in support of accountability. These important developments have prompted reflections on how to best and effectively support UN investigative mandates once established, and how to maximise benefits and cooperation among various justice actors moving forward, while achieving efficiencies against a background of scarce resources and competing priorities.

Over the course of the past two years, a research team at the University of Oxford – in partnership with the International Bar Association and the Simon Skjodt Center for the Prevention of Genocide of the US Holocaust Memorial Museum – has carried out an in-depth study to better understand the challenges arising for UN accountability mandates and how they can be best supported moving forward.

Our study reveals that a lot can be learned from the three UN independent investigative mechanisms, and that effectively and efficiently supporting accountability moving forward requires seizing on the lessons learned and investment made to this day to build permanent investigative support capacity. Based on our findings, we advance two concrete models for building standing investigative capacity:

  • Option 1: Establish an Investigative Support Mechanism (ISM), independent of OHCHR in the same manner as the three investigative mechanisms. The ISM would act both as a service provider to other mandates concerned with accountability – including Commissions of Inquiry and Fact-Finding Missions when these are conferred by the Human Rights Council – and, when triggered by a competent UN body, as an investigative mechanism of its own, as well as fulfilling a coordinating role and providing strategic advice wherever multiple actors are pursuing investigations on the same situation, thus maximising the potential for making effective use of gathered materials.
  • Option 2: Establish an Investigative Support Division (ISD) within OHCHR. The ISD would assist in the prompt recruitment and deployment of effective and well-resourced teams as required for each UN mandated investigation. It would serve as a repository of institutional memory and achieve efficiencies by standardising the preparatory processes and investigative plans for each accountability Fact-Finding Mission or Commission of Inquiry that is established by the Human Rights Council, while also supporting other mandates’ case-building functions - wherever these are established as independent from OHCHR.

In addition, we advance a series of recommendations that should be implemented by states irrespective of which model might prevail to ensure the proper and efficient functioning of any standing investigative support entity within the UN.