Elisabeth Pramendorfer, Senior Human Rights Officer at the Global Centre for the Responsibility to Protect, writes on Human Rights Council mandated investigative mechanisms.
The establishment of an investigative mechanism is considered as one of the strongest ways in which the United Nations (UN) Human Rights Council (HRC) can respond to atrocity crises. Over the past years, the HRC has demonstrated creativity in naming these mechanisms – ranging from the Commissions of Inquiry (CoI) on DPRK, Syria and Burundi, to the Group of Eminent Experts (GEE) on Yemen, Fact-Finding Missions (FFM) on Myanmar and Venezuela and the Commission on Human Rights in South Sudan (CHRSS) – and has also shown innovation (and political compromise) in how these mechanisms are mandated to address context-specific crisis situations.
In fact, the decisions on what types of violations and abuses are covered, whether investigators may collect and preserve evidence or the timeframe and geographic scope, are most times as highly debated as the actual creation, or subsequent renewals, of the bodies itself. It entails tough negotiations and significant political capital to determine what these mechanisms are supposed to do – and how far they can go.
From Accountability to Early Warning
Regardless of the diplomatic challenges on setting up investigations, it has been widely acknowledged that these bodies play an essential role in contributing to legal and political accountability. But in most cases mechanisms are also mandated to monitor, report and provide an assessment of ongoing violations and abuses and possible further deterioration – or improvement. Hence, they not only perform a unique role in analysing risk factors which have facilitated the commission of atrocities in the past, but also how these, if unaddressed, may lead to their recurrence.
One of many investigations that stands out in this regard is the historic September 2020 report of the FFM on Venezuela, which outlined how structures of power at the highest level of government, lack of independent state institutions and persistent impunity have all emboldened perpetrators within security and intelligence to carry out possible crimes against humanity. This assessment therefore outlined the factors which have created an environment conducive for the commission of atrocities. But, looking at it through a “prevention lens”, the findings make it clear that without system-wide institutional changes and reform, the conditions which have enabled patterns of repression and violence remain in place today, and little may change for populations in the country unless there is follow-up action and engagement by UN member states and the wider international community based on the analysis and recommendations of the report.
Stepping It Up: Institutionalising Atrocity Risk Assessments
One way in which member states can and should systematically advance and institutionalise this “prevention lens” would be to explicitly mandate investigative mechanisms to utilise the UN Framework of Analysis for Atrocity Crimes (FoA). The FoA was developed by the UN Office of the Special Advisers on the Prevention of Genocide and the Responsibility to Protect in 2014. It is unique as it goes beyond a human rights assessment and points towards other relevant risk factors, including governance structures, the organisation of state security forces or economic or political incentives to commit atrocities. While the above example of Venezuela highlights that investigative bodies, in fact, already provide such assessments of the highest quality, a formal application of the FoA may increase the pressure on the international community to adopt a forward-looking strategy and take measures to prevent escalation.
Undoubtedly, it was largely thanks to the CoI on Burundi’s historic September 2019 report that the international community started to pay particular attention to a high-risk environment in what was often considered a protracted atrocity crisis. By deciding to use the FoA, the CoI warned of a heightened risk of recurrence of atrocities ahead of the May 2020 elections, identified as a “triggering factor”. Using the FoA allowed the CoI to adopt a preventive approach and monitor trends and regularly update member states on changing dynamics as elections came closer. While it is impossible to know for certain why the May vote didn’t trigger a bloodbath in the end, it was the work of the CoI that put the Burundian government on notice that they are under intense international scrutiny, and state-instigated violence may lead to serious repercussions.
As mentioned above, ensuring this mandate addition to various investigative bodies will require significant political will by member states throughout the negotiation process in Geneva, and shall be expected to face strong opposition, depending to a great extent on the political dynamics around a specific country mechanism. States who consider themselves as champions of human rights and supporters of R2P – and there are quite a few, to say the least – can and should play a particular role in pushing for this when HRC mechanisms are established or renewed. In addition, states should systematically mandate mechanisms to share information with other UN bodies – most importantly the UN Security Council.
In their latest conference room paper, the Commission on Human Rights in South Sudan (CHRSS) dedicated an entire section on “risk and prevention of atrocity crimes”, outlining that lack of strong and efficient national institutions, widespread impunity and persistent socio-economic and political instability “represent a toxic mix with potential for further conflagration”. The CHRSS had previously also identified that economic crimes, struggle for political power, access to state resources and hate speech are serving as structural drivers of conflict; helping us predict what may lie ahead if not addressed.
It is therefore astonishing, and truly disheartening, that at the same time as the CHRSS warned of staggering levels of localised violence which “threaten to spiral out of control across several regions in the country”, and where “current violence wreaked on South Sudanese civilians is the worst since the onset of the civil war in December 2013”, a group of countries, at the time of writing, are advocating before the HRC to end investigations and focus solely on technical assistance and capacity-building.
Never Again: Turning the Promise into Reality
This brings me back to my main point. While the establishment of an investigative body is a strong step by the international community to respond to situations where populations are at risk of, or are experiencing, atrocities, it should not be mistaken as an end in and of itself. What really matters is the action taken by states and the wider international community once these mechanisms have fulfilled their mandate. Depending on the context, this can take the form of follow up international scrutiny and investigations, bilateral diplomatic pressure, engagement with accountability mechanisms to pursue justice for victims, targeted sanctions or judicial proceedings against individual perpetrators or technical assistance and capacity building for concerned countries genuinely willing to achieve human rights progress and strengthen resilience to atrocities.
The decision by the UN Security Council to end mandatory reporting on Burundi in December 2020 – only weeks after the CoI warned that all structural atrocity risk factors remain unchanged, and the government has not made genuine steps towards addressing them – highlights the gaps between early warning information and willingness to act upon it with a view towards preventing recurrence. No matter how strong, substantive, significant and elaborative a report and its analysis will be – it depends on all of us to utilise this information and act upon it, before it’s too late – once again.
Elisabeth Pramendorfer is Senior Human Rights Officer at the Global Centre for the Responsibility to Protect. She has previously published on HRC investigative mechanisms and preventing mass atrocities, including “Human Rights Council Investigative Mechanisms and Mass Atrocity Prevention”.
Title image: ‘Human Rights Council special session on the situation in Palestine’ is licensed under CC BY-NC-ND 2.0.
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