The role of UN-mandated investigative mechanisms in securing accountability for human rights violations at national, regional and international levels

Accountability Roundtable Series

Opening remarks by ASG Ilze Brands Kehris

31 August 2021

Colleagues, friends,

I wish to thank the Universal Rights Group, with the support the Permanent Mission of the United States of America in Geneva, for organizing this roundtable.

I am delighted to be with you, alongside several of my OHCHR colleagues. Widening the pathways for securing accountability for perpetrators and justice for victims is a core interest of the High Commissioner and our Office.

In that context, allow me to offer some brief reflections on accountability and international law, before homing in on the contribution that UN-mandated investigative mechanisms can play in this regard.

International human rights, humanitarian and criminal law are distinct bodies of international law that articulate norms for various duty-holders. Each has its own origin, scope of application, institutions, methodology and internal logic. At the same time, they are closely related and, in many ways, intertwined – resulting in an intricate system with the shared objective of protecting people, their rights and our common humanity.

Accountability is a critical element in the realization of this shared objective, as the credibility and effectiveness of each body of law depends on the extent to which it is enforced in a fair manner. Accountability contributes to norm affirmation. It validates checks and balances that help deterring and preventing transgressions. And, importantly, it opens avenues for victims to seek justice and redress. All are critical elements in the longer-term objectives of promoting reconciliation and ensuring sustainable peace and just societies founded on the rule of law.

Each of the three bodies of law have identified duty-holders and created their own mechanisms, processes and sanctions to foster compliance and accountability. In the UN human rights system, this includes the treaty bodies, special procedures and other mechanisms. These systems complement accountability systems in other normative realms – be they moral, political, religious, social or disciplinary – and at international, regional, national and local levels. It is only when these various normative systems are effective and work together that that a space emerges in which accountability thrives as a catalyst for justice and prevention.

Yet, when we speak of accountability in the context of serious human rights violations, our discourse is often uniquely or predominantly focused on international criminal justice. However fundamental that is, it must be set in a broader context of other forums and tools that can play a critical role, and where accountability gains can also be made.

In moving to the central topic of this roundtable, the question then becomes how the international community can make better use of UN-mandated investigative mechanisms to foster accountability in a holistic way.

Human rights investigative mechanisms have always had an important accountability role. This is by virtue of their recording, analyzing, and presenting facts in line with applicable legal frameworks, thereby qualifying violations in legal terms and indicating possible responsibilities. This important function is a corollary of two other core functions: establishing a factual independent record of events and alerting the international community of the need for corrective action.

Member States have long been cognizant of this potential, reflecting it in mechanism mandates in various ways. For example, by articulating the need to investigate “with a view to assuring accountability for perpetrators and justice for victims”, or by requesting the identification of perpetrators or guidance on accountability options.

Since the stagnation around a possible ICC-referral of the situation in Syria, there has been an interest to further expand this role. In two situations, human rights investigations have been complemented by a new type of specific mechanism to collect and preserve evidence and prepare criminal case files (Syria and Myanmar). More recently, requests to collect and preserve evidence for criminal accountability have been directly included in the mandates of some human rights investigations (e.g. South Sudan, OPT and Belarus).

Such strengthened focus on accountability is welcome and signals that the fight against impunity is central to the common goal of justice for victims and prevention. The creativity of the international community, establishing new mechanisms and adjusting mandates in a push for accountability, is both reassuring and inspiring.

At the same time, we must recognize the limitations associated with these trends:

• First, investigative mechanisms are not judicial accountability mechanisms and can only undertake preparatory work to enhance the chances of holding perpetrators of serious human rights violations accountable. Despite the welcome increase in investigative mechanisms with accountability-related functions, States continue to bear the primary responsibility for halting violations. These mechanisms do not absolve States from their duty to hold perpetrators accountable. Stronger action continues to be needed, including activating the ICC and exercising universal jurisdiction. Put simply, “accountability light” is not an option.
• Second, inserting accountability functions in the mandates of investigative mechanisms may not yield the required results, unless it is accompanied by adequate resources and the political will to follow-up with actual accountability steps.
• And third, human rights investigations have their own distinct role and methodology, as they perform their own wider sets of functions. Even as we expect a stronger accountability focus, the core functions of a human rights investigation in bringing credible information and analysis to the attention of the international community should be maintained.

Let me now turn to how we can further refine the role of such mechanisms in the pursuit of comprehensive, effective and consistent accountability approaches.

First, the role that investigative mechanisms play in the pursuit of legal accountability can be further strengthened. Such mechanisms are not courts but the information they gather can play a significant role in triggering and facilitating judicial proceedings. This is proven today by the legal actions based on the work of the FFM-Myanmar, as well as several universal jurisdiction cases using information from the COI and IIIM-Syria. An important area for reflection is thus how to finetune the competencies and methods of work of such mechanisms, especially human rights investigations, to maximize the uptake of their information in subsequent legal proceedings.

Second, human rights investigations could more systematically advise the international community on the broader range of measures to be taken to combat impunity at a structural level, as is already done in cases like Syria and South Sudan.

A more comprehensive understanding of the notion of accountability in a specific context, its purpose, and what it requires to become reality, would be helpful to determine effective courses of action for the international community. This begins with an in-depth examination of what impunity means in situation of concern, how it is achieved and experienced, what structures enable it, and who benefits from it. Deterrence is an important objective of accountability and the punishment of some perpetrators for some incidents will contribute to this objective. However, the dismantling of impunity structures that sustain conflict and abuse requires much more. Accountability mechanisms must be crafted and designed accordingly and be accompanied by other measures, including in pursuit of truth, reparation, memorialization and guarantees of non-recurrence.

Investigative mechanisms are uniquely placed to offer such analysis and strategic recommendations, as they examine patterns of human rights abuse, their root causes and the circumstances in which they occur.

Third, we could further explore the opportunity that human rights investigations have to advise the international community of local justice demands, what is needed to build up national accountability systems and generate a local sense of justice. This would assist the international community in taking steps towards accountability that are based on solid theories of change, specific context on the ground, and victims’ rights and aspirations, and therefore make it sustainable. Accountability initiatives would be grounded in a transformative and preventive project that contributes to building national human rights protection systems.

This may in some cases require investigative mechanisms to expand on their typical set of activities, and may require additional expertise and resources, but it could generate a leap forward in galvanizing concerted and effective action for justice – both within the country concerned and internationally.

In suggesting these three areas of reflection, I am deliberately placing the role of human rights investigative mechanisms in a broader accountability perspective, to underscore that such mechanisms are an important part of a wider system with complementary parts.

If we want to realize the preventive potential of accountability, it is critical for the international community to be innovative as well as consistent, not leaving blatant impunity gaps. We are faced daily with old and new challenges, including the unfolding situation in Afghanistan.

Going forward, we will need to strengthen and deepen our collective imagination, and flexibility, to ensure that in each specific context we creatively use and adjust the tools that we have, including investigative mechanisms, to achieve clearly defined accountability objectives.

The discussions today provide an excellent opportunity to reflect on this together, and I look forward to interesting exchanges.

Thank you.