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Responding to Misconceptions Regarding the IIIM

Responding to Misconceptions Regarding the IIIM

 The following article was written through the cooperation of three non-governmental organizations: Syria Justice and Accountability Centre, Syrians for Truth and Justice, and the Violations Documentation Center in Syria. Its content reflects the joint views of these entities.

 The International, Impartial and Independent Mechanism (IIIM) to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes in Syria was established by UN General Assembly resolution in December 2016. On July 3, United Nations Secretary-General Antonio Guterres appointed Catherine Marchi-Uhel as Head of IIIM. Marchi-Uhel is a former French judge with broad international experience trying and adjudicating war crimes. During her 27-year career, Marchi-Uhel has provided legal support to the International Criminal Tribunal for the Former Yugoslavia, the UN Mission in Liberia, and the UN Interim Administration Mission in Kosovo. She has also adjudicated for the Extraordinary Chambers in the Courts of Cambodia and currently serves as Ombudsperson to the UN Security Council’s 1267 Committee – reviewing requests for delisting from the Committee’s Sanction List. Her appointment signals the beginning of IIIM’s substantive work.

Since IIIM’s inception, Syrian civil society has worked to support the Mechanism and to clarify its aims and means. In February, several Syrian NGOs sent a letter to the General Assembly noting questions and recommendations that would help the IIIM understand Syrians’ priorities and increase local buy-in. In May, a meeting between the IIIM start-up team and a wide range of Syria civil society organizations was held in Lausanne, Switzerland. The meeting provided an excellent platform to exchange views, provide recommendations, and establish a common understanding between both sides.

Despite these positive steps, some Syrian people, activists, and civil society groups still have questions regarding the IIIM’s purpose and potential for advancing accountability in Syria.

In June, the Office of the High Commissioner of Human Rights’ (OHCHR) hosted a human rights reference group meeting in Turkey with Syrian NGOs to discuss the latest in human rights developments – including the IIIM’s progress. The meeting led to a greater understanding of the IIIM’s mandate. Since the meeting was not open to the public, we have identified five of the most prominent concerns voiced by Syrians and clarified them below for wider public understanding.

One: The IIIM is a duplicate of the Commission of Inquiry (CoI).

The IIIM and the CoI have complementary but distinct mandates. The CoI investigates violations of international human rights law committed during the Syrian conflict, focusing on establishing the facts and circumstances of violations. Meanwhile, the IIIM’s mandate is to collect, consolidate, preserve and analyze evidence of violations, focusing particularly on linkage evidence and evidence pertaining to intent (mens rea) and to specific modes of criminal liability. It will store and analyze this information and eventually share it with jurisdictions carrying out prosecutions for international crimes committed in Syria.

The IIIM and the CoI also employ separate data collection methods. CoI’s investigative data is primarily comprised of first-hand accounts by victims and witnesses collected through interviews. CoI does not serve as a central depository for evidence. By contrast, IIIM’s methodology includes the widespread collection of evidence from a variety of sources, including the CoI, States, international or regional organizations, and NGOs. Outside sources can voluntarily share their evidence with IIIM, adding to its depository. Ideally, the CoI will provide all of its data to IIIM, which can then reach out to sources with questions or requests for supplemental evidence. However, details on this data flow still needs to be clarified.

 IIIM is also projected to have more frequent and meaningful engagement with Syrian NGOs than CoI has had. Since IIIM is authorized to enter into memorandums of understanding (MoU) with outside sources, NGOs will have more clarity on the terms of their relationship with the IIIM, an issue that has always been murky and undefined with CoI. MoUs will give Syrian NGOs an opportunity to verbalize their expectations prior to collaboration, which will hopefully facilitate a mutually beneficial interaction.

 Finally, unlike the CoI, the IIIM is not expected to publicly disclose its work. COI investigations are publicly reported and include findings and recommendations. IIIM is not required to publicly report on its substantive work. While the Mechanism will issue periodic progress reports, the public generally will not be informed of its findings until a case is filed.

 Two: IIIM does not file cases.

IIIM is not a court, prosecutor’s office, or tribunal, but the purpose of the Mechanism is to collect, consolidate, analyze, and subsequently share information with national, regional, or international courts or tribunals that have or may in the future have jurisdiction over crimes. This case-filing function is exactly what makes IIIM a potentially powerful tool for justice and accountability for Syria. Filing cases does not mean IIIM will prosecute the case, but it will ease the investigatory burden of prosecutors. Exactly which courts IIIM will share files with is still undetermined. They will likely include European courts, but the forum will depend entirely on the evidence IIIM gathers and where suspects are located. In the future, if a tribunal is established or the ICC gains jurisdiction over Syria, the Mechanism will be able to share its case files with those entities as well. Already, IIIM’s startup team has been in contact with the prosecutors’ offices of many countries and is developing a method by which to communicate and share files with these offices.

 Three: IIIM will share information and cases with the Syrian government.

The UN made explicit at IIIM’s inception that the Mechanism will only share case files and data with courts or tribunals that respect international human rights law and standards, including the right to a fair trial, and where the death penalty would not apply for the offenses under consideration. The current Syrian government’s documented human rights abuses, war crimes, and crimes against humanity wholly preclude it from gaining access to any IIIM case files, data, or evidence. Government prosecutors wishing to obtain information from the Mechanism must demonstrate a continuous and successful effort by their government to uphold internationally recognized standards of human rights and due process. If there is a successful political transition in Syria, any subsequent government seeking to adjudicate cases in Syrian courts with material from IIIM will be required to demonstrate a strong record of respect for the rule of law and international legal standards.

Four: The UN is not funding its own initiative.

IIIM currently relies exclusively on donations by UN Member States for financing, as opposed to direct UN funding. However, this design may be temporary. Because IIIM is still in its infancy, the UN has yet to allocate funds to it. The Mechanism has relied instead on voluntary contributions by a handful of member States to begin its work expeditiously.  While States are encouraged to commit multi-year funding for the Mechanism, the Secretary General has encouraged the General Assembly to review funding to the Mechanism as soon as possible, signaling that UN funds may be allocated in the future.

The Mechanism does not currently accept any donations from non-state actors. Moving forward, it will be completely contingent upon IIIM’s leadership to develop a permanent funding framework that maintains the Mechanism’s impartiality.

Five: IIIM is the only entity able to file cases.

IIIM has no exclusive right to file cases, and its existence does not bar NGOs from filing cases independently. It is healthy practice to allow victims groups, volunteers, and NGOs to file cases of this nature when possible. If these entities do file cases separately from the IIIM, we encourage them to do so in a way that complements the Mechanism and does not seek to compete with it. While case filing is not restricted to the IIIM, the Mechanism is committed by design to the highest level of impartiality, independence, and quality data collection through its vast network of resources. For these reasons, we have jointly committed to filing cases directly through the IIIM in order to utilize its merits and resources. Furthermore, all three of our organizations are committed to responding to requests from prosecutors for any case that holds violators of international law in Syria to account, no matter which organization or entity files the case.

For more information or to provide feedback, please contact:

SJAC at [email protected]

VDC at [email protected]

STJ at [email protected]