September 17, 2019
With conflicts raging around the world—particularly in Syria, South Sudan, and Myanmar—innocent men, women, and children have been targeted by government forces, rebel groups, and terrorist groups, in many cases singled out and persecuted because of their identity, political affiliation, religion, or ethnicity. Victims and survivors of genocide and crimes against humanity in all of these contexts share a common plea: they have repeatedly and consistently called for justice. Their cry for justice has not yet been answered.
Why is that? It will surprise many to learn that there is no independent court which has the jurisdiction, capacity, and legal framework to prosecute the perpetrators of these crimes. National courts are an unlikely avenue for justice, either because the state itself is perpetrating the atrocities or because the domestic justice system is completely broken. At the international level, none of these states is a party to the Rome Statute, making it highly unlikely that cases against those most responsible will be heard at the International Criminal Court. In the absence of the political will to set up country-specific, ad-hoc courts or tribunals (as was done for the former Yugoslavia and Rwanda), Member States of the United Nations (UN) have established new “investigative mechanisms” in recent years to serve as a stop-gap.
Though not a court itself, the establishment of these investigative mechanisms lays the necessary groundwork for justice by collecting and storing evidence and then analyzing that evidence to build legal case files against specific perpetrators that could be used in future criminal prosecutions. It’s a critical first step toward justice, but one that requires support from a range of actors in order to be effective. Most importantly, these investigative mechanisms inevitably rely on local civil society organizations and NGOs to play an intermediary role connecting them to remote and scattered communities and at-risk witnesses and victims. Civil society organizations and NGOs are often the ones who have been documenting atrocities for many years, know the local context and history, and provide a critical link to understanding what kind of justice communities want.
Three such investigative mechanisms are operational in Syria, Iraq, and South Sudan. A fourth—the International Investigative Mechanism for Myanmar (IIMM)—was authorized by Member States in the UN Human Rights Council last year. As the IIMM begins to hire staff and set its priorities, the Ferencz International Justice Initiative (the Ferencz Initiative) of the United States Holocaust Memorial Museum’s Simon-Skjodt Center for the Prevention of Genocide has released a white paper which highlights considerations for civil society organizations engaging with UN investigative mechanisms. The white paper, which was developed in consultation with civil society organizations (CSOs) engaging with and officials from the investigative mechanisms in Syria, South Sudan, and Iraq, surfaces four key points as well as a number of more specific recommendations:
(1) Understanding the IIMM’s Mandate and Setting Expectations
It is critical that civil society organizations and victims' communities planning to engage and work with the IIMM fully understand the scope and limitations of its unique mandate. The IIMM represents one important but discrete step toward justice and accountability by preparing case files for future prosecutions; the IIMM is not mandated to prosecute perpetrators itself. Civil society organizations and other justice champions will need to continue to advocate for an independent court(s) to try these cases. Working effectively with the mechanism will be a long-term endeavor, and should be viewed as a new additional opportunity for human rights engagement that complements—not replaces—ongoing work.
(2) Anticipating a Potential Gap in Public Reporting and Advocacy
While the IIMM represents a strong step toward international accountability, it must adhere to confidentiality requirements when creating legal case files. Given that its creation coincides with the end of the Fact-Finding Mission’s (more public) mandate, it will likely leave an important public and independent reporting and advocacy gap. Civil society organizations engaged in human rights advocacy for political change in Myanmar should consider carefully how to maintain and build pressure through other processes. States should consider ways to ensure the UN Special Rapporteur and other UN mechanisms are equipped and sufficiently resourced to address this gap.
(3) Supporting Security and Witness Protection
As the IIMM will offer few concrete resources for security and witness protection, civil society organizations, international NGOs and governments should establish appropriate programs and security infrastructure to ensure that engagement with the IIMM does not endanger witnesses and victims’ communities.
(4) Communication, Coordination and Engagement with Affected Communities
Regular and transparent communication, coordination, and engagement between Mechanism officials and affected communities are key to maintaining trust in and political support for the Mechanism’s long-term mandate. Dedicated IIMM outreach personnel and points of contact, as well as official agreements (e.g., MOUs and protocols), and opportunities for dialogue and capacity building, can foster positive working relationships.
The white paper finds that the success of the IIMM and similar mechanisms not only requires civil society organizations and other relevant actors to contribute evidence to and engage with them. In the long-term, it is also critical to foster the international political will to ensure that the case files developed by the Mechanisms are directed towards established courts and judicial processes and those yet to be formed. With a proactive and strategic approach, civil society can move one step closer to ending impunity and holding the perpetrators of mass atrocities to account.
To coincide with the release of the white paper, the Ferencz Initiative is co-hosting a panel discussion with the International Federation for Human Rights on the sidelines of the 42nd General Session of the UN Human Rights Council in Geneva.