Two international mechanisms to investigate human rights violations in Belarus: How were they created and what can be achieved with their help?

Two international mechanisms to investigate human rights violations in Belarus: How were they created and what can be achieved with their help?

Policy brief by iSANS

АР
06.04.2021 iSANS

Important decisions of the international community adopted at the end of March, which had been long awaited in Belarus, can become a turning point, radically changing the dynamics of the standoff between the dictatorship and the pro-democracy forces of society.

At the end of March, two important decisions were made at the international level, which have every chance to make a significant change in the development of the situation in Belarus. The country is currently in a stalemate. The society does not accept the illegitimate regime of Alexander Lukashenko and will not tolerate the extension of his power. It continues to insist on its demands for an end to repression, the release of political prisoners, negotiations with the opposition and the holding of new fair elections. The society continues to struggle, but it does not have the resources to resume mass protests that could lead to a change of power, because the bankrupt regime is constantly increasing repression, brutally persecuting opponents and intimidating the society.

International pressure, including economic sanctions, has so far been insufficient to force the regime to change its policy. However, the creation at the end of March of new international legal mechanisms aimed at ending impunity for human rights crimes in Belarus may lead to a change in the balance of power.

First, on 24 March, the UN Human Rights Council established an official UN mandate to investigate human rights violations in Belarus in the run-up to the presidential election and in its aftermath. At the same time, an international platform of non-governmental organisations was created to investigate human rights violations in Belarus in the context of the presidential elections. It is important to understand why these are not routine events, what their potential is, and what needs to be done to ensure that they bring the maximum result.

The discussion of the need to hold an international investigation began in November last year after the release of the report within the framework of the OSCE Moscow Mechanism. In this report, authored by OSCE Rapporteur Professor Wolfgang Benedek, ending impunity for human rights violations in Belarus and bringing those responsible to justice was a key recommendation. To achieve this critical objective, the Rapporteur called on the international community to establish an international mechanism for an in-depth investigation of human rights violations in the context of the presidential elections. In the following months, the question of who could establish such a mechanism (international organisations, states or NGOs) so that it would be effective and independent and start operating as quickly as possible, was actively discussed at many international venues.

The question of the speed of launching the investigative mechanism is of key significance.

First, it is critical that evidence of extrajudicial executions, torture and other grave violations is documented while it can still be recorded and while victims and witnesses are willing to speak. Secondly, on the background of continued repression, the preventive effect of the beginning of investigations on the actions of law enforcement officers is particularly important.

If law enforcement officials know that an investigation has begun at the highest international level with a great chance of establishing the personal responsibility of the perpetrators and bringing them to justice, it is obvious that they will be less willing to be complicit in serious human rights violations or follow criminal orders.

From the very beginning, the creation of an international mechanism within the UN framework was considered as the strongest option in terms of legitimacy and the degree of impact on the situation. However, many participants in the discussions reasonably doubted that a positive decision within the UN could be achieved quickly – first of all, because of the obvious opposition of Russia and its allies and because of the doubts of the delegations of a number of countries, who believe that such serious mechanisms should be created only in the most difficult situations with mass victims, genocide and other crimes against humanity. Many participants in the discussions believed that persuading the hesitating and reaching a sufficient level of support could take a very long time. Secondly, the past experience of creating such mechanisms to investigate mass violations of human rights in countries such as Syria, Libya, Yemen, and Sri Lanka showed that between 6 to 12 months may pass between the adoption of a decision and the actual start of the mechanism’s work, primarily due to organisational reasons. Against the background of a new wave of repressions in Belarus since mid-January, the time factor has become crucial.

Primarily out of concern of a long process and the unpredictability of the result within the UN, many NGOs and experts actively advocated in November-January that the interested states should not wait for the creation of a mechanism under the auspices of the UN, but take responsibility and create an ad hoc investigative mechanism outside the UN as a follow up to the OSCE Moscow Mechanism report, in cooperation with Belarusian and international human rights organisations that collect evidence of torture and other gross violations of human rights. This mechanism could start working much faster than an accountability mechanism/ mandate within the UN. Despite the fact that the weight of such an ad hoc mechanism would be lower than that of a UN mandate, it would still have legitimacy, based on both following up to the OSCE Moscow Mechanism report and the legal obligations of states as parties to the International Convention against Torture. Under these obligations, States parties have an obligation to investigate allegations of torture wherever they occur and to bring those responsible to justice. These obligations also give rise to the legal mechanism of universal jurisdiction, which is used in many countries and allows for the prosecution of perpetrators of crimes that took place in other states.

Negotiations on the establishment of such a mechanism were actively held in January-February at the initiative of the governments of three countries – Denmark, Germany and the United Kingdom – and with the active participation of other interested states, non-governmental organisations and experts.

This complex process had no precedent; it was important to find a balance between the legitimacy, independence and effectiveness of the mechanism being created.

As a result, it was decided that this ad hoc international mechanism is being created by a coalition of independent Belarusian and international human rights NGOs with the political and financial support of like-minded States.

The launch of the mechanism called the «International Accountability Platform for Belarus» was announced on 24 March. It is no coincidence that this happened on the same day that the UN Human Rights Council was discussing and voting on a draft resolution on the establishment of an official international mechanism within the UN. The work of these two mechanisms will be complementary and synchronised. Such authoritative organisations as the Danish Institute against Torture «Dignity», the Human Rights Centre «Viasna» (Belarus), the International Committee for the Investigation of Torture in Belarus and the British NGO Redress became the coordinators of the international NGO platform. In addition, the coalition includes about 15 other leading Belarusian and international human rights organisations with track record in documenting and investigating torture and other violations of international human rights law. The purpose of the platform is to collect, process, verify and store information, documentation and evidence of serious violations of international human rights law committed in Belarus in the run-up to the 2020 presidential election and its aftermath.

Twenty states in Europe and North America and the European Union immediately expressed their political and financial support for this mechanism, implemented by non-governmental organisations. Their joint statement said that the materials collected by the international NGO platform will be handed over to the UN investigative mechanism once operational, and expressed confidence that the documents collected by non-governmental organisations will serve any future independent criminal investigations and 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 those crimes, in accordance with international law. This shows the seriousness of the intentions of the states concerned not only to collect evidence of the crimes of the Lukashenko regime, but also to bring these cases to trial, whether in the framework of universal jurisdiction in these or other countries, in the international tribunal (if it will be created), in the framework of the International Criminal Court or in a future transitional or free Belarus.

The NGO coalition within the framework of the International Accountability Platform for Belarus has already started its work. Belarusian and international human rights organisations have at their disposal data on more than a thousand cases of torture and other cruel and inhuman treatment in Belarus, which they have documented over the past six months. Work is beginning on its additional verification in accordance with international standards, processing, classification and safe storage in the data depository in such a form that they can be immediately used for investigative actions in the framework of official investigations. At the same time, work is underway to document other cases of gross violations that have not yet been recorded, both those that occurred shortly after the elections and more recently, which occurred during the ongoing repression. In addition, painstaking work will be carried out to establish linkages between crimes and their perpetrators, evidence of the guilt of those who gave criminal orders and those who executed them. Belarusian human rights defenders and civil society activists already have a lot of such information from open and internal sources, but much more needs to be done to identify those responsible and collect evidence.

Both those who want justice to get done and those who want to hide the traces of crimes, it is important to understand that this important work in Belarus will not be carried out from scratch, but will take into account the extensive international experience of investigation and documentation accumulated during the investigation of similar crimes in different regions of the world. This experience and methodology are available to the coalition of international and Belarusian NGOs, experts cooperating with them, and supporting states, and will be actively used in the work.

In parallel with the discussion of the idea of creating an ad hoc mechanism outside the UN and practical steps to establish an NGO coalition to implement it, active work was underway to prepare for the creation of an international mechanism within the UN. Discussions at the UN began in September, shortly after widespread arbitrary detentions and brutal torture took place in the days after the election. At that time, the UN Human Rights Council held an urgent debate on the situation in Belarus, following which the Council mandated the UN High Commissioner for Human Rights to monitor the situation of human rights violations and present two reports with recommendations – an interim oral update in December and a final written report in March. Such a rapid response by the international community was unusual in itself and provided a good basis for further, more strategic action to combat impunity.

In her interim report in December, the High Commissioner did not refer to the idea of an international investigation under the United Nations auspices but recommended that the government of Belarus hold an immediate investigation into human rights violations that occurred in the context of the elections. However, the fact that the High Commissioner explicitly pointed out in December the systemic problem of non-cooperation of the Belarusian authorities with UN human rights bodies, in particular, non-compliance with the decisions of the UN Human Rights Committee on individual complaints, gave grounds for states and non-governmental organisations to start discussing the creation of a new international mechanism with more serious powers and a mandate for investigation and documentation. At the same time, there were also sceptical opinions that it would be difficult to create something serious, given the challenging experience of establishing UN commissions to investigate human rights violations in countries such as Syria, Libya, etc., where the scale of crimes was much greater than in Belarus.

Despite the upcoming difficulties in convincing the delegations of the UN Human Rights Council member states to support this initiative and the obvious future opposition of Russia and its allies, the EU member states took an active position. Their belief in the need to create an effective investigative mechanism within the UN was growing against the background of the expansion of repression in Belarus in January-February and the disclosure of new evidence of arbitrary detentions, mass torture, enforced disappearances and extrajudicial executions over the past months, which was collected and published by Belarusian and international human rights defenders. It turns out that the Lukashenko regime itself, unwittingly, contributed to the conviction of wavering states that a strategic response of the international community at the UN level is necessary.

The European Union prepared a draft resolution for the March session of the UN Human Rights Council and actively negotiated with many delegations of UN member states. The draft resolution envisioned the establishment of a strong independent UN mechanism on Belarus, similar to the independent mechanisms established by the Council in the past decade in respect of situations of grave human rights violations in other countries. Such mandates included the Independent International Commission of Inquiry on Syria (2011), the Commission on Human Rights in South Sudan (2016), the Group of Eminent Experts on Yemen (2017), the Independent International Fact-Finding Mission on Venezuela (2019) and the Independent Fact-Finding Mission on Libya (2020). All of these mechanisms were given a mandate to investigate gross violations of human rights, including extrajudicial executions, enforced disappearances, arbitrary detention, torture and other cruel, inhuman or degrading treatment (as well as violations of international humanitarian law, where appropriate), with a view to combating impunity and ensuring full accountability of the perpetrators and justice for the victims. In addition, the Human Rights Council has established other mechanisms, instructing the High Commissioner for Human Rights to conduct investigative and fact-finding work with the assistance of independent experts – for example, on the situation in Sri Lanka (2014). The difference between these two types of mechanisms (under the leadership of independent experts and under the leadership of the High Commissioner) is insignificant. Although a fully independent commission without the participation of the High Commissioner is formally considered to have a higher status, in practice, the work of mechanisms under the leadership of the High Commissioner may be faster and as effective.

During the discussions of the first draft of the resolution on Belarus, broad support for the establishment of a mechanism under the leadership of the High Commissioner emerged, mainly out of concern that the establishment and launch of a fully independent commission led by experts would take too long, up to a year, while the states concerned were eager for the new mechanism to start working as soon as possible.

As a result of an active negotiation process and the editing of the draft resolution, an excellent compromise was reached. The resolution on Belarus put to the vote and eventually adopted by the Council provides for the establishment of an accountability mandate that will be based inside the Office of the High Commissioner for Human Rights but in practical terms will correspond with a mandate of a separate and fully independent commission in everything but name. Three prominent independent experts will assist the investigation, and the mechanism will have a substantial professional staff and significant budget. The text of the resolution on Belarus resembles the wording of the Council resolution of 2014, which mandated the High Commissioner to investigate the situation of gross violations of human rights in Sri Lanka.

In the end, on 24 March, the UN Human Rights Council adopted the resolution «Situation of human rights in Belarus in the run-up to the 2020 presidential election and in its aftermath» by 20 votes in favour, with 7 votes against and 20 abstentions. By this resolution, the Council mandated the High Commissioner for Human Rights, with assistance from relevant experts and special procedure mandate holders, «to monitor and report on the situation of human rights, to carry out a comprehensive examination of all alleged human rights violations committed in Belarus since 1 May 2020, including the possible gender dimensions of such violations, to establish the facts and circumstances surrounding the alleged violations, and to collect, consolidate, preserve and analyse information and evidence with a view to contributing to accountability for perpetrators and justice for victims and, where possible, to identify those responsible.»

The High Commissioner will appoint three prominent international experts to assist the investigation. These are likely to be high-level, authoritative experts – as was the case with the Sri Lanka mechanism. The Sri Lanka Mechanism, under the leadership of the High Commissioner, has been led by such distinguished individuals as the former President of Finland, a former judge of the Supreme Court of New Zealand, and the former Chair of the Human Rights Commission of Pakistan. The states that sponsored the March 2021 resolution expect to have equally authoritative experts appointed within the framework of the mechanism being created for Belarus. The search for candidates has already begun.

The text of the adopted resolution explicitly states that the new mechanism should cooperate with existing regional organisations, such as the OSCE, and with civil society. It is expected that the International Accountability Platform for Belarus, created by non-governmental organisations with the support of concerned states in parallel with the preparation of the resolution of the Human Rights Council, will become one of the main sources of information for the UN mechanism. But anyone, any organisation or individual, will be able to cooperate with the UN mechanism and transmit information to it.

The High Commissioner is due to submit an interim report to the Council in September 2021 and a final report in March 2022. The mechanism will also issue periodic statements. Based on the experience of past UN investigative mechanisms, one can be certain that in a year this mandate will be extended by the Council. The fact that the resolution mandates the High Commissioner to collect information and evidence and identify those responsible suggests that the capacity of this mechanism is fully consistent with the mandate of the previously established independent commissions of inquiry on Syria, Libya, etc.

This is also evidenced by the serious budget of the mechanism being created, as well as the planned size of its staff. The proposal prepared by the Office of the High Commissioner includes a draft annual budget of more than $ 2.5 million and a staff of 16 people. The staff will include a Senior Human Rights Officer, to perform the functions of Coordinator, a fact-finding team leader, an analysis and reporting officer, a legal adviser, a sexual and gender-based violence adviser, a media adviser, three human rights investigators, an open source investigator, an evidence and information officer, a security sector adviser, a child rights investigator, two interpreters and an administrator. The mechanism will be located in Geneva. The budget includes travel expenses for staff and key experts to Warsaw, Vilnius and Kiev, as well as travel for victims and witnesses for interviews. When comparing these capabilities with the resources of the UN Special Rapporteur on the Situation of Human Rights in Belarus, with her $ 300,000 annual budget and one staff, the seriousness of the mechanism being created is not in doubt.

The difference between this UN mechanism and fully independent commissions of inquiry is that the High Commissioner is responsible for its work, not the Human Rights Council, while the High Commissioner will report to the Council on the results of its work, and that the practical steps to establish the mechanism will require significantly less time due to institutional reasons, which is very good. It is anticipated that the mechanism will begin its work before July 2021.

The Belarusian authorities are well aware of the seriousness of the mandate and powers of the UN investigative mechanism being created. This was clearly evident from the fact that Belarusian officials actively participated in negotiations and lobbying against the adoption of the resolution, in striking contrast to their complete disregard for the reports of the UN Special Rapporteur on the Situation of Human Rights in Belarus or the decisions of the UN Committee on Human Rights on individual complaints. A key ally of the Lukashenko regime, Russia, was also actively involved in lobbying against the resolution at a very high level.

Obviously, the adoption of this resolution is a major success. This mechanism for investigating serious and mass violations of human rights in Belarus has everything necessary to become effective. This is the strongest response that could be expected from the UN Human Rights Council. Fortunately, the sceptics were wrong.

It is now important to launch the mechanism established by the Human Rights Council as soon as possible – to select and appoint prominent high-level experts, allocate the necessary budget, hire qualified personnel, ensure effective interaction with civil society institutions, and extend the mandate of the mechanism next year. Immediately after the adoption of the resolution, a wide range of non-governmental organisations issued a public appeal to the Human Rights Council and the High Commissioner to take these steps without delay.

For their part, all interested individuals, organisations and states should make the most of this opportunity and provide the Office of the High Commissioner with full cooperation in the collection of information, testimonies and evidence.

If the new UN mechanism and the international platform of non-governmental organisations working in parallel are successful, there will be a real chance to make a breakthrough in the situation in Belarus. The collected evidence will not only help to ensure that more security forces members refuse to commit criminal acts, reduce violence by the authorities and force the regime to engage in negotiations on holding fair elections under international control, but will also allow justice to be done. Justice can be obtained in the near future in the framework of universal jurisdiction in different countries and a bit later in the framework of a possible international tribunal, International Criminal Court or trials in Belarus during or after transition.

In addition, the collected evidence can be used by states to include the perpetrators in the sanctions lists at the EU level and national level, including in those states that have adopted the «Magnitsky law». This will significantly increase the sanctions pressure and make it more stable and legitimate from all points of view.

Holding the perpetrators of human rights violations accountable as soon as possible and achieving justice for the victims will be the most important foundation for the creation of a new Belarus. The launch of international investigative mechanisms will give people new hope and empower Belarusian society to continue its struggle for democracy and the rule of law.

In order to make the most use of these important decisions of the international community and to fully realise the potential of the two new mechanisms on Belarus, the following actions should be taken:

  1. States that have expressed their political support for the International Accountability Platform for Belarus Justice, established by non-governmental organisations, should immediately allocate the necessary financial resources so that it can start working in full as soon as possible.
  2. The coordinators of the International Accountability Platform should resolve all organisational issues as soon as possible and launch an active and large-scale work on the verification, classification and preservation of already collected evidence and the collection of evidence in new cases. At the same time, the participants of the International Platform, together with partner organisations, should actively work to establish links between crimes and perpetrators and to search for evidence of the guilt of those who gave criminal orders and those who directly carried them out.
  3. The coordinators of the International Accountability Platform should establish a direct channel of communication with the UN investigative mechanism, as soon as it is operational, to coordinate the work and transmit to it the materials collected by the Platform.
  4. All interested organisations and individuals in Belarus and other countries must actively cooperate with the International Accountability Platform, provide it with the necessary information and all possible support. To do this, it is important to disseminate information about the possibilities of interaction with the International Platform as widely as possible in Belarus and neighbouring countries. Special attention should be paid to the protection of Belarusian organisations and experts – participants of the International Platform who are persecuted by the authorities.
  5. Members of the UN Human Rights Council, its secretariat and the UN High Commissioner for Human Rights should operationalise the UN mechanism on Belarus established by the Human Rights Council as quickly as possible, in particular, quickly select and appoint prominent high-level experts, allocate the necessary budget, hire qualified personnel, ensure effective interaction with international institutions, such as the OSCE, and civil society organisations.
  6. Members of the UN Human Rights Council should support the established UN mechanism on Belarus, actively participate in the discussion of its reports, adopt strong resolutions based on them, and extend the mandate of the mechanism in a year, giving it the sufficient operational window to perform its work.
  7. The established UN mechanism on Belarus should actively cooperate with the International Accountability Platform for Belarus and other civil society organisations and effectively use the documentation and evidence they have collected in such a way that they can be effectively used for investigation in judicial procedures based on international law.
  8. All interested organisations and individuals in Belarus and other countries should actively cooperate with the UN mechanism on Belarus, provide it with the necessary information and all possible support.
  9. The states concerned should make effective use of the documentation produced by the two mechanisms and bring the cases to trial, first of all in the near future at the national level through investigative procedures based on universal jurisdiction, and begin preparations for the establishment of an international tribunal and the referral of the situation in Belarus to the jurisdiction of the International Criminal Court.
  10. Interested states should actively use the evidence gathered by the two mechanisms to include perpetrators in the sanctions lists at the EU level and at the national level, including in those states that have adopted the Magnitsky law. This will significantly increase the sanctions pressure and make it more stable and legitimate from all points of view.

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