Explainer: Investigative mechanisms, fact-finding missions, and boards of inquiry
A former Prime Minister assassinated while leaving a rally in Rawalpindi, Pakistan. Hundreds of Syrian men, women and children in Ghouta murdered in a chemical weapons attack. ISIL/Da’esh capturing and controlling large swathes of territory in Iraq, and carrying out executions, torture, rape and ethno-sectarian attacks. These events drew international condemnation, but also pressing calls for answers and accountability. But who would hold those responsible accountable? And how would the facts be established?
In cases such as these, Member States often look to the United Nations and to the Secretary-General in particular, for answers. The Organization has several tools it can deploy to examine situations where violations of international law may have occurred. It uses investigative mechanisms and fact-finding missions, as well as boards of inquiry, to independently verify facts and, in the case of investigative mechanisms, gather evidence for possible use in criminal prosecutions. This work — the establishing of facts by an independent body — not only helps to assign responsibility (in the case of mechanisms and fact-finding missions); it also has a clear place in conflict-prevention work. It can ease tensions and help smooth over disputes.
With its conflict-prevention mandate, the Department of Political and Peacebuilding Affairs (DPPA) has a role to play in the establishment and provision of support to various United Nations investigative and fact-finding bodies. DPPA has backed, among other mechanisms and missions, the Organization of the Prohibition of Chemical Weapons — United Nations Joint Investigative Mechanism (OPCW-UN JIM); the International Commission against Impunity in Guatemala (CICIG); the United Nations Commission of Inquiry into the assassination of Benazir Bhutto, the former Prime Minister of Pakistan; the International Commission of Inquiry on the 28 September 2009 events in Guinea; and the United Nations International Independent Investigation Commission (UNIIC) on the assassination of former Lebanese Prime Minister Rafik Hariri. While a wealth of different tools have been created, there are three main types: investigative mechanisms, fact-finding missions, and boards of inquiry.
The purpose of investigative mechanisms is to collect evidence of violations of international law that will be admissible in national or international criminal proceedings. Legal investigations are carried out, much like the early stages of a criminal investigation. The evidence gathered can subsequently be used in court, either by Member States or by an international tribunal. Such mechanisms can only be established by a competent intergovernmental body, such as the Security Council or the General Assembly. These include the International Independent Investigation Commission (UNIIIC), which evolved into the Special Tribunal for Lebanon (STL), the International Commission against Impunity in Guatemala (CICIG), the International, Impartial and Independent Mechanism (IIIM), Independent Investigative Mechanism for Myanmar (IIMM), and the Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD).
Fact-finding missions, meanwhile, are an important tool of dispute resolution. They can establish basic facts and help defuse tensions. The Security Council may mandate the establishment of a mission. The Secretary-General, at his discretion, also has the power to establish a Fact-Finding Mission. As in the case of the mission to Jenin in 2002, established after an Israeli Defense Force incursion into a refugee camp, the Secretary-General may use a fact-finding mission to gather facts for possible presentation to the Security Council. The Secretary-General’s fact-finding missions do not make legal findings. The methods used for gathering the facts are also not those typical to a criminal investigation.
It’s important to note that the Human Rights Council, as a General Assembly subsidiary organ, can establish Commissions of Inquiry and Fact-Finding Missions on events involving possible violations of international human rights law and humanitarian law. It has done so many times.
The Security Council has sometimes asked the Secretary-General to establish a commission of inquiry: for example, into events in the Central African Republic, in 2013. The Secretary-General also has the authority himself to establish commissions of inquiry as a form of fact-finding. He has done so a number of times, most notably into the killings that took place on 28 September 2009 in Guinea. He has also done so jointly with the executive head of a regional organization, as in the case of the commission formed with the Secretary-General of the Organization of African Unity (OAU) in 2000 into reports of extra-judicial killings in Togo in 1998.
Boards of Inquiry
The Secretary-General may establish “boards of inquiry” (BOIs) under his own authority, without a mandate from Member States. BOIs are usually established when United Nations personnel have been injured or killed, or when the Organization’s property is damaged or its operations otherwise impacted. They are not aimed at finding legal responsibility, but rather are an exercise to find out whether policies and procedures were followed or not, and whether they can be improved.
DPPA assisted in the setting up of the International Independent Investigation Commission (IIIC), established by the Security Council to help the Lebanese authorities in their investigation of all aspects of the assassination of the former Prime Minister, Rafiq Hariri, who was killed along with 22 others in an explosion in downtown Beirut in 2005. It aimed to help identify the perpetrators, sponsors, organizers and accomplices. Its establishment followed the submission of the Secretary-General’s report on the fact-finding mission to Lebanon, which had the approval of both the Lebanese Government and the Council.
At the behest of then-Secretary-General Ban Ki-moon, the Department also helped establish a Commission of Inquiry into the assassination of Pakistani Prime Minister Benazir Bhutto in 2007. The Commission’s mandate enabled it to conduct a criminal investigation into the incident.
In 2013, DPPA (then known as DPA) was involved in discussions pertaining to reports received by the Secretary-General from Member States on the alleged use of chemical weapons in the Syrian Arab Republic and the subsequent decision of the Secretary-General to institute a United Nations investigation into the possible use of chemical weapons in the Syrian Arab Republic, based the authority given to him under relevant General Assembly and Security Council resolutions. It was referred to as the “Secretary-General’s Mechanism for investigation of alleged use of chemical and biological weapons”. With the UN Office for Disarmament Affairs (UNODA) in the lead, DPA provided contextual awareness of the rapidly evolving developments on the ground and the political debates on the matter within the Security Council.
On 21 August 2013, as Syria’s civil war raged on, a chemical weapons attack was carried out in two areas in Ghouta, in the western part of the country. Many Syrians, including women and children, were killed. The subsequent investigation determined that chemical weapons were used.
After Syria acceded to the Chemical Weapons Convention on 14 September 2013, DPPA’s Syria desk was part of the advance team that deployed to The Hague to lead discussions with the Organization for the Prohibition of Chemical Weapons (OPCW) on the establishment of a joint mission to “oversee the timely elimination of the chemical weapons programme of the Syrian Arab Republic in the safest and most secure manner possible”. Subsequently, DPPA also deployed political affairs officers to support the joint mission’s work in Damascus. The Joint OPCW-UN mission completed the supervision of the destruction of the Syrian chemical weapons programme in 2014, in line with the relevant Security Council resolution.
With UNODA at the helm, DPPA assisted in setting up the OPCW-UN Joint Investigative Mechanism (OPCW-UN JIM), or “JIM” for short. The JIM’s mandate was to attribute chemical weapons use in Syria where the OPCW’s Fact-Finding mission had determined that chemical weapons or chemicals had been used as weapons. DPPA also briefed relevant actors on the political context. The JIM remained operational until 2017, when its mandate was not renewed by the Security Council. It issued several reports, which attributed the use of chemical weapons to the Syrian Arab Armed Forces (in Talmenes on 21 April, 2014, and Qmenas and Sarmin on 16 March, 2015), whose “helicopters were used to drop barrel bombs in those three cases” and ISIL (on Marea on 21 August, 2015, using “artillery shells filled with sulfur mustard, a chemical weapon”).
DPPA coordinated the establishment of the Board of Inquiry that was set up by the Secretary-General on 21 October 2017 in response to an attack on a UN/Syrian Arab Red Crescent (SARC) convoy in Urum al-Kubra, Syria, on 19 September 2016. The convoy was delivering assistance to a SARC compound for distribution to around 780,00 persons requiring humanitarian aid when it came under fire. At least 10 people were killed and 22 injured, in addition to the destruction of relief operation vehicles and property.
The Board submitted a report to the Secretary-General on its findings; such reports are internal and not for public release. However, the subsequent report of the Secretary-General includes a summary of that report, concluding that while the incident was caused by an air attack, “it was not possible to identify the perpetrator or perpetrators”. In addition, while the Board had received reports that “information existed to the effect that the Syrian Arab Air Force was highly likely to have perpetrated the attack…the Board did not have access to raw data to support those assertions and, in the absence of such data, it was unable to draw a definite conclusion”.
UNITAD was created through Security Council resolution 2379 (2017) at the request of the Government of Iraq in response to the crimes committed by ISIL/Da’esh. Pursuant to its mandate and Terms of reference, UNITAD is collecting evidence relating to acts committed by ISIL in Iraq that may amount to war crimes, crimes against humanity, and genocide. DPPA was involved in the UNITAD mandate negotiations and start-up of operations. Today, UNITAD has no formal relationship with DPPA but works closely with the United Nations Assistance Mission for Iraq (UNAMI), including the through the embedding of its mission support function within UNAMI.
DPPA also assisted with the work of the investigative mechanism that was set up in response to the March 2017 deaths of two members of the Group of Experts on the Democratic Republic of Congo, a sanctions-monitoring body established by the Security Council.
A Board of Inquiry relating to Gaza was set up in 2014 in response to incidents taking place during the course of hostilities in Gaza between 8 July and 26 August, which affected UN personnel, premises and operations. The Secretary-General established a Board to review and investigate 10 of those incidents, in which death or injuries occurred at, or damage was done to, UN premises, or in which the presence of weaponry was reported. DPPA acted as the secretariat for the Board and helped in the appointment of experts, including ballistic and military specialists. The Secretary-General transmitted to the Council a summary of the report. According to the Board’s 2015 report, actions by Israel led to the deaths of 44 Palestinians located at emergency shelters in UN premises; in addition, the report described the discovery of weaponry on UN premises that had been stored there by Palestinian militant groups.
Of course, while final outcomes and accountability are often uncertain, results and successes can be achieved. On Bhutto’s murder, the UN found that it could have been prevented, had adequate security measures been taken. UNITAD continues to collect a broad range of evidence against ISIL, and produces comprehensive case files capable of supporting domestic proceedings, both in Iraq and beyond. In other cases, such as that of Ghouta, impunity seemingly remains. But when mechanisms, missions and boards are able to continue their work, and the facts are unearthed, justice comes closer to being served.