In 2016, in response to the SC’s repeated failures to refer the situation in the Syrian Arab Republic to the ICC, the GA took the unprecedented step of establishing the IIIM. It was established through GA resolution 71/248, which passed with 105 votes in favour to 15 against (including the Syrian Arab Republic) and 52 abstentions (A/RES/71/248)). The resolution mandated the IIIM to cooperate with the Independent International Commission of Inquiry on the Syrian Arab Republic (established in 2011 by the HRC through resolution S-17/1 (A/HRC/S-17/1) to “collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses and to prepare files in order 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, in accordance with international law” (A/RES/71/248).1
The Syrian Arab Republic has disputed the GA’s authority to establish this body, on the grounds that the Syrian Arab Republic had not requested technical or legal assistance from the UN, and that it contravenes the UN Charter and SC authority.2 This argument has also been used to discredit the work of the IIIM.3 Similarly, in a note verbale to the Secretary-General in February 2017 (A/71/793), the Russian Federation argued that the GA had exceeded its powers by creating a judicial body outside of the consent of the host State concerned. The Russian Federation and other Member States also suggested that this was a matter with which the SC was seized at the time, and invoking Article 12(1) of the Charter.4
The IIIM has had important precedential effects for other UN mechanisms and other accountability mechanisms and functions within international criminal law. Since 2016, the IIIM has provided significant support, including evidence, to criminal proceedings under national jurisdictions, and cooperated with a range of actors, including civil society organizations, international organizations, UN bodies and State entities to facilitate investigation efforts.5 Because part of its functions has been to collect evidence that would be judicially submissible, it goes beyond what has been produced in many fact-finding bodies. This approach became the model for other pre-prosecutorial mechanisms, including the SC-established Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (which was established in 2017 and collects evidence on crimes committed by Da’esh/ISIL and facilitates accountability through Iraqi and other courts (S/RES/2379)), and the 2018 HRC-created Independent Investigative Mechanism for Myanmar (A/HRC/RES/39/2).
Notes
- In distinguishing the IIIM’s functions from the existing COI on the Syrian Arab Republic, the Secretary-General noted that “in essence, the Mechanism has a quasi-prosecutorial function that is beyond the scope of the Commission’s mandate” (A/71/755, para. 32). ↩︎
- See for example United Nations, “Briefing General Assembly, international mechanism head calls crimes committed in Syria ‘barbaric’, urges pursuing accountability”, press release, 1 April 2022. ↩︎
- Ibid. ↩︎
- In its 2017 note verbale, the Russian Federation argued that “in deciding to create a ‘mechanism’ with these functions, the General Assembly acted ultra vires – going beyond its powers as specified in Articles 10-12 and 22 of the Charter of the United Nations” (A/71/793). Similarly, the Syrian representative in the GA plenary meeting of 21 December 2016 argued that in the Syrian case, “the Security Council remain[ed] seized of its responsibilities”, and thus that “the establishment of such mechanisms by the General Assembly would require the authorization of the Secretary-General and the consent of the affected State, in this case the Government of Syria” (A/71/PV.66). There were similar observations by Cuba during the GA meeting. United Nations, “Briefing General Assembly, international mechanism head calls crimes committed in Syria ‘barbaric’, urges pursuing accountability”. ↩︎
- International, Impartial and Independent Mechanism, “Achievements and Opportunities”, Bulletin No. 10 (December 2023). Between 2018 and 2023, the IIIM has seen a steady rise in Requests for Assistance (RFA) from jurisdictions, with 325 RFAs from 16 competent jurisdictions received during this period. As of February 2024, the IIIM had concluded 91 cooperation frameworks (A/78/772, p. 9). ↩︎