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Statements Office of the High Commissioner for Human Rights
05 November 2020
5-6 November 2020
I am grateful to the Government of the Netherlands and the International Commission of Jurists for bringing together this event, to examine where we are in the evolving effort to best combat impunity. With the significant developments of recent years, it is opportune to reflect on what we have learned, and how we can best further sharpen our focus going forward. I am proud of the role my own Office has played in this shared effort, and I acknowledge the ongoing support of the Dutch Government to our work in this area.
It is a great pleasure to share today’s opening panel with Fatou Bensouda, Prosecutor of the International Criminal Court. We are fortunate to have the benefit of her almost nine years in that key position to orient this conference’s reflections over the next two days. And in Catherine Marchi-Uhel and Nicholas Koumjian, I am pleased to have two highly experienced international criminal jurists, pushing to maximise what the new generation of UN accountability mechanisms can achieve.
Excellencies, distinguished participants,
As High Commissioner for Human Rights, I emphasise that the rule of law and accountability are indispensable foundations for the effective protection of human rights. And I say this in two ways, both to protect human rights through deterring and preventing violations, and to effectively confront and address them when they do occur.
Criminal accountability for the most serious violations is a cornerstone of our human rights architecture, and an essential demand of victims. Equally, in countries in post-conflict and post-authoritarian situations, where mass violations have occurred, criminal accountability benefits from being accompanied by a broad range of complementary measures to support truth, justice, reparation and guarantees of non-recurrence. These different measures, in combination, can effectively break cycles of impunity and violence. I emphasised this point in the Security Council’s first open debate on transitional justice, held earlier this year.
Accountability processes are also a vital tool to do deeper, harder work beyond addressing individual cases of responsibility – I mean here the ability to expose the breadth of structural and systemic drivers of impunity. These include insidious discriminatory practices and wider violations of economic, social, and cultural rights. We cannot overlook the importance of this analysis as precondition for an equitable and more just future in societies that have suffered the gravest harms imaginable.
For almost 20 years now, the International Criminal Court has pursued its unique mandate to deliver accountability for international crimes with respect to 123 States, 2/3 of the full membership of the United Nations. And my Office, together with the UN Office of Legal Affairs, has over 15 years of engagement developed a close working relationship with the ICC Prosecutor, pursuing the shared goal of combating impunity for the very worst crimes.
But for almost as long, we have discussed the notion of complementarity of collective effort. In its broadest sense, this means combinations of national, regional and international mechanisms, depending on the specific situation, that can and must widen the scope of accountability beyond what a single institution, even one as significant as the ICC, can deliver on its own.
In recent years, this has led to no fewer than three separate inter-governmental organs of the UN establishing novel investigative mechanisms to advance accountability in extremely diverse environments. In 2016, the General Assembly took an unprecedented step in establishing the International, Independent and Impartial Mechanism for Syria. In 2018, the Human Rights Council, followed suit, creating the Independent Investigative Mechanism for Myanmar. And alongside these, in 2017 the Security Council also decided to establish UNITAD, to examine the crimes committed by ISIL/Daesh and facilitate accountability through Iraqi and other courts.
These three mechanisms address particular situations of extreme concern to the international community. But they have not arisen in a vacuum. On the contrary, for more than two decades my Office has operationalised investigative bodies mandated – principally by the Human Rights Council – to examine and report back on situations of concern from the human rights perspective. For these commissions of inquiry and fact-finding missions, collection and assessment of evidence, analysis of grounds to believe international crimes have been committed, and identification of alleged perpetrators have been standard features.
These mechanisms, composed of human rights experts, have contributed to the creation of historical record of events, provided a framework for consideration of accountability options, and retained and preserved extensive records for future accountability purposes. They have also recommended measures to redress violations, provide justice and reparation to victims, provide a basis for further investigations and hold perpetrators to account. And, of particular relevance to this conference, they have led to the creation of new accountability mechanisms. Indeed, in the case of Myanmar, the creation of the IIMM was a specific recommendation of the Fact-Finding Mission which preceded it.
These three new mechanisms build directly on that rich experience. But rather than being smaller human rights teams with limited temporal mandates, these mechanisms instead have ongoing mandates to explicitly support and pursue accountability, through analysis of much larger, diverse teams of criminal justice professionals, specifically mandated to engage with and support accountability efforts in other jurisdictions. Undoubtedly, these new mechanisms have changed the landscape, increasing expectations of victims, civil society and other stakeholders. And they have also valuably contributed to dissolving perceived distinctions between human rights work, on the one hand, and criminal justice work on the other.
Our conference is well timed, allowing us to examine challenges that have arisen through the very organic development of these new mandates. I wish to briefly raise three issues.
First is the issue of perceived selectivity. Without doubt, the situations addressed by these mechanisms warrant every part of the attention being focussed upon them. But we also need to recognise that each was the product of particular political constellations that led to their establishment. There are many other situations where the suffering of victims and the destruction of societies has been as severe, and the international community has yet to react in the same way. This is a political challenge that falls to Member States to address. Whether it makes sense for new mechanisms to be established one by one, or whether some form of more permanent, standing mechanism can take forward a more consistent treatment of different situations is a key challenge for UN Member States.
Second, funding remains one of the core challenges to ensure that all relevant mechanisms, older and newer, can best achieve the shared goal of advancing accountability. The lack of predictable, sustainable funding complicates planning and the implementation of any mandate. And the need for the leadership of varying mechanisms to repeatedly focus on resource issues diminishes their limited resources for addressing the core accountability mandate. There are more effective ways to address this issue, and I would encourage consideration of a coherent, consistent approach. Increasing acknowledgment of the UN’s regular budget as appropriate funding stream is an important step forward.
Third, the creation of new, separate mechanisms can lead to inconsistent methodologies, disparate approaches and varying outcomes. And there are inefficiencies in multiplicities of teams performing very similar investigative and cooperation functions with Member States. I know my colleagues have worked hard to maximise commonalities and build on shared understandings and platforms, and that is very welcome. But distinct institutions will always have individual dynamics that can pull in differing directions, with attendant complexity for States and external stakeholders engaging with them. It is timely to consider, in light of experience, what optimal models in this respect could look like in the future.
I welcome the widening focus on accountability in recent years. For OHCHR, we will continue to build our own expertise, in support of the work of national, regional and international justice processes.
I am committed, together with you, to constructing robust linkages between criminal justice, reparation, truth-seeking and the broad array of measures against recurrence, and to playing our part in reaching our shared goal of justice and accountability for the worst violations of human rights. I wish you all a successful conference.