Dear Dean Scharf, Ladies and Gentlemen, Dear Colleagues,
I am very honoured to accept the Frederick Cox Award for Advancing Global Justice, and to be here with you today to deliver the Klatsky Endowed Human Rights Lecture.
Today, no situation can highlight the need and urgency to advance global justice more than the situation in Syria. Since the beginning of the crisis, countless reports of atrocities committed on all sides have been brought to the attention of the international community, involving widespread violations of human rights and international humanitarian law. (1) Depending on the circumstances, these allegations may amount to core international crimes. They involve torture; enforced disappearance; extrajudicial killings; sexual violence against females and males, including sexual slavery; and attacks against civilians and civilian objects, including schools, medical facilities and personnel; and the use of chemical weapons. (2)
The horrors suffered by the Syrian people over the past seven years defy description, and so far, the affected communities have been, understandably, disillusioned by the prospects of seeing justice. (3)
Since the outbreak of violence in 2011, the Security Council has failed to refer the situation in Syria to the International Criminal Court or to create an ad hoc tribunal. (4) It is against this background that, in December 2016, the General Assembly established the International, Impartial, and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011. (5) I will refer to it as "the Mechanism."
The long title already reveals key aspects of the Mechanism's mandate. This body is innovative in many ways and differs significantly from previous accountability initiatives established by the United Nations, such as, for instance, the ad hoc tribunals for the Former Yugoslavia and for Rwanda, although it significantly builds on their experiences. (6)
As you know, the Mechanism is not a prosecutor's office nor a court. It cannot issue indictments, prosecute cases, or render judgments. (7) Instead, it is mandated to collect, consolidate, preserve and analyse evidence of violations collected by a variety of actors over the past 7 years, including UN bodies, Syrian and international NGOs, individuals, and States. (8)
It is further mandated to prepare files to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards, in national, regional or international courts or tribunals that have, or may in the future have, jurisdiction over these crimes. (9)
Currently, this includes national courts that can exercise jurisdiction, such as forms of universal jurisdiction, over certain crimes committed in Syria. (10) However, in the future, these crimes could also be prosecuted at the international level, either by the ICC, or by a new ad hoc tribunal for Syria, or even by a regional court. (11) It is also hoped that, in the future, Syrian courts themselves will be able to take their part in this process.
In other words, the Mechanism has been mandated to conduct the essential preparatory work grounded in criminal law methodologies that will be needed for accountability processes, regardless of which judicial avenues may emerge in the future. (12)
I believe that the creation of the Mechanism is an important demonstration of the international community's will to ensure that crimes committed in Syria do not go unpunished. Its innovative mandate, that recognizes the value of creating synergies between international human rights fact-finding and criminal justice processes, constitutes a crucial step forward towards ensuring accountability for these crimes.
In carrying out its functions, the Mechanism is guided by the fundamental principles of independence and impartiality. (13) With regard to independence, this means that the Mechanism does not act on instructions from any entity in performing its work, (14) nor is it influenced by the agendas of external actors. (15) Regarding the material it collects from various sources, the Mechanism will not import the conclusions drawn by other bodies. (16) Instead, in all instances, it will make its own objective assessment of material received and draw its own inferences, applying a criminal law standard. (17) In terms of impartiality, the Mechanism will not apply any bias against, or in favour of, any particular State, group or individual. (18) Instead, it will address crimes committed in Syria regardless of any affiliation of the alleged perpetrators. (19)
In discharging its mandate, the Mechanism is confronted with numerous challenges, one of the main ones being the unprecedented volumes, fragmentation and duplication of potential evidence of crimes in Syria collected by individuals, NGOs and other entities. (20) This includes large amounts of images and video material. (21) It is not by chance that the Syrian conflict has been tag-lined as the most recorded conflict in the world. (22) This in turn presents two important challenges. The first one relates to the preservation and analysis of such volumes of material. To be able to do so, the Mechanism has acquired a state-of-the-art evidence management system, as mandated in its terms of reference, and has implemented effective measures aimed at protecting confidential materials and work-product against cyber-attacks. (23) Data protection and information security are key priorities, and the Mechanism is firm in its commitment not to compromise the safety and security of material in its possession, including sensitive data of victims and witnesses. (24) The second challenge flowing from the availability of such significant volumes of potentially relevant data relates to duplication, for instance when multiple entities are in possession of similar or identical material that eventually makes its way into the Mechanism's collection. (25) Evidentiary challenges can also arise from collection techniques inconsistent with criminal law standards. (26) In this respect, the Mechanism's IT systems provide a framework for meticulously organizing the material, ensuring that it is easily searchable and that appropriate metadata are established, integrated and maintained to facilitate analysis and corroboration of existing material. (27) Methods for tracking duplicate material, linking translations and rigorously enforcing confidentiality restrictions, including using cutting-edge technology, are also being integrated. (28)
Another key challenge for the Mechanism is ensuring sustained funding. In creating the Mechanism, the General Assembly decided that it would be funded by voluntary contributions. (29) However, as you know, voluntary funding is not appropriate for international justice mechanisms. This was recognised by the General Assembly when, in December 2017, it called upon the Secretary General of the United Nations to include...