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Russia Maintains Objection to General Assembly’s Mechanism for Syria

 

On 21 December 2016, the General Assembly (GA) adopted Resolution 71/248, creating a new body to collect evidence of international crimes in Syria (formally known as “the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011,” and in shorthand known as “the IIIM” or “the Mechanism”). The move was historic – the first time the GA has taken such a step – and it offered some hope that despite the Security Council’s current inability to refer Syria to the International Criminal Court (“ICC”) or create an ad-hoc international tribunal to adjudicate crimes there, the GA’s action might help pave the way to accountability in the future.

Now in a note-verbale to the Secretary General, Russia has argued that the GA lacked the authority to establish the Mechanism and that it should now be neither staffed nor funded. However, these objections merely reprise ones already advanced by both Russia and Syria during the vote on the Resolution, and rejected by the 105 countries – including the United States – that approved the measure (52 countries abstained). Furthermore, they are based on an erroneous characterization of the Mechanism’s powers and functions. In fact, there is little question that the GA had full authority under the UN Charter to establish the Mechanism, and the Secretary General should continue to move forward to implement the GA Resolution and the Mechanism’s Terms of Reference.

Russia constructs its entire argument against the legality of the Mechanism on the following characterization of its mandate:

A number of powers vested in the “mechanism” under resolution 71/248, including those of “analys[ing] evidence” and “prepar[ing] files”, are prosecutorial in nature. However, prosecutions, criminal investigations and support of criminal investigations are not among the functions of the General Assembly. It cannot create an organ that has more powers than the Assembly itself.

From this starting point, the Russian note verbale goes on to argue that such mechanisms can only be established by a vote of the Security Council pursuant to its Chapter 7 powers or with the consent of the country in question, in this case Syria. Without either, the GA Resolution represents, in its estimation, “a grave violation of the principles of the sovereign equality of all Members of the Organization and non-intervention in their internal affairs ….”

However, from this erroneous premise, the note verbale draws erroneous conclusions. Describing the Mechanism as “prosecutorial in nature” suggests that it can in fact prosecute, or that it has compulsory or binding authority to investigate. Such a body would indeed be beyond the competence of the GA: only the Council or Syria itself could establish a tribunal with the legal authority to charge individuals or to obligate states to cooperate in its investigations. But the Mechanism does neither. It is nothing more than a fact-gathering entity that relies entirely on the voluntary cooperation of states, non-governmental organizations, and individuals with relevant information. It has no authority to prosecute anybody based on the information it collects. In other words, it can exercise no binding or compulsory legal authority on any individual or state.

It is true that the Secretary General’s 19 January 2017 report to the GA on the implementation of the Mechanism (detailing its organizational structure, siting, and relationship with other entities) describes it as having a “quasi-prosecutorial function” (para. 32). In context, that terminology is used only to contrast the work of the Mechanism with that of the entirely separate Independent, International Commission of Inquiry on the Syrian Arab Republic (“Commission”), established by the Human Rights Council in 2011 with a broad mandate to collect information of human rights abuses and violations for a variety of political and diplomatic purposes. The Mechanism’s task is to build on the work of the Commission and other fact-finding entities – including non-governmental organizations – by collecting evidence (meaning information that would likely be admissible in court) that is specifically relevant to violations of international criminal law with a focus on linkage evidence—that evidence that would tend to support a finding of individual criminal responsibility. In other words, the Mechanism is a fact-finding body that is distinct only in that it will collect evidence to a criminal law standard. It is this standard that makes the Mechanisms “quasi-prosecutorial,” not when it comes to any of the powers that it will exercise.

So, does the GA have the authority under the UN Charter to create a fact-finding body that collects evidence to a criminal law standard, relying solely on the voluntary cooperation of states and other organizations? Of course it does. Article 10 of the Charter give the General Assembly the power to “discuss” and make “recommendations” concerning “any questions or matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter.” Accordingly, the GA has full authority to consider whether it wishes to recommend to the Security Council that it refer Syria to the ICC or create an ad-hoc tribunal for Syria. Article 22 in turn empowers the GA to “establish such subsidiary organs as it deems necessary for the performance of its functions.” To the extent the GA “deems it necessary” to collect and analyze information to assess whether there are likely to be viable international criminal law cases against individual perpetrators, for the purposes of its discussions and recommendations concerning threats to peace and security in Syria, it certainly has the authority to create a subsidiary body to do so. The Secretary General is similarly authorized under Article 99 to “bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.” Secretaries General have consistently relied on this power, beginning with U Thant, to dispatch fact-finding missions on their own initiatives in order to inform their judgments about when to exercise their authority, a practice explicitly endorsed by the General Assembly in its 1991 “Declaration on Fact-Finding by the United Nations in the Field of the Maintenance of International Peace and Security.”

Properly framed, it is also difficult to see how the work of the Mechanism will either violate Syria’s sovereignty or interfere in its internal affairs. It will exercise no coercive authority over Syria as a state or any Syrian national. It will have no access to Syrian territory absent Syria’s consent. It will simply collect and analyze evidence of international crimes committed in Syria. We are long past any conception of state sovereignty that would deem such evidence collection to be an infringement on the authority of the state. The GA’s establishment of the Mechanism is an important promotion of the principle of accountability for international crimes as it provides a way to collect, preserve, and analyze evidence of crimes while there exists a political impasse preventing any international tribunal from adjudicating crimes in Syria. States should be encouraged to support and fund this effort. And, the Secretary General should carry on the work of establishing and staffing the Mechanism.

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About the Author

Former Federal Prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston, Former International Criminal Prosecutor at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court in The Hague Follow him on Twitter (@alexgwhiting).