Terms of reference

Terms of reference of 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

1. On 21 December 2016, the General Assembly adopted resolution 71/248, by which it decided, in paragraph 4, to establish 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.

2. By that resolution, the Secretary-General was requested, with the support of the Office of the United Nations High Commissioner for Human Rights, to develop the terms of reference of the Mechanism within 20 working days of its adoption, i.e. by 20 January 2017. The Secretary-General was also requested to undertake the steps, measures and arrangements necessary for the speedy establishment and full functioning of the Mechanism without delay, in coordination with the Independent International Commission of Inquiry on the Syrian Arab Republic. The SecretaryGeneral was requested to report on the implementation of the resolution by 4 February 2017.

I. Mandate

3. By its resolution 71/248, 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 under the auspices of the United Nations to closely cooperate with the Independent International Commission of Inquiry on the Syrian Arab Republic 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.

4. The Mechanism assists in the investigation and prosecution of the most serious crimes under international law, in particular the crime of genocide, crimes against
humanity and war crimes, as defined in relevant sources of international law.

A. To collect, consolidate, preserve and analyse evidence of violations
of international humanitarian law and human rights violations
and abuses

1. Collection

5. The Mechanism is mandated to collect evidence or relevant information pertaining to violations of international humanitarian law and human rights violations and abuses. In that regard:

(a) It shall collect evidence and information by receiving it from other sources, including the Independent International Commission of Inquiry on the Syrian Arab Republic, the Organization for the Prohibition of Chemical Weapons United Nations Joint Investigative Mechanism, States, international or regional organizations, entities of the United Nations system, non-governmental organizations, foundations and individuals, whether at its request or on the initiative of those sources. By resolution 71/248, all States, all parties to the conflict as well as civil society were called upon to cooperate fully with the Mechanism, in particular to provide it with any information and documentation that they might possess, as well as any other forms of assistance pertaining to their its mandate;

(b) It shall, as appropriate, collect additional evidence or information, including interviews, witness testimony, documentation and forensic material.

6. The Mechanism shall seek to establish the connection between crime -based evidence and the persons responsible, directly or indirectly, for such alleged crimes, focusing in particular on linkage evidence. It focuses on evidence pertaining to mens rea and to specific modes of criminal liability, including under the principle of command or superior responsibility established under international criminal law.

2. Consolidation and analysis of evidence

7. The Mechanism shall systematically organize all the information, documentation and evidence in its possession, such as interviews, witness testimony, documentation and forensic material, so as to ensure that their use can be maximized in future criminal investigations and prosecutions.

8. The analysis conducted by the Mechanism shall include a preliminary assessment of the information, documentation and evidence in its possession, based on its reliability and probative value, identifying gaps in evidence and documentation and/or the need for additional information.

3. Preservation

9. The Mechanism shall systematically record and preserve all information, documentation and evidence, including interviews, witness testimony, documentation and forensic material, in accordance with international criminal law standards, in order to maximize the possibility of its admissibility in future legal proceedings.

10. The Mechanism shall ensure an uninterrupted chain of custody of the evidence in its possession.

11. The Mechanism shall be equipped with the capacity necessary to preserve all forms of evidence and otherwise enter into an agreement with Member States to be given access to safe, secure and reputable entities that can assist in this regard, with all due guarantees of security and strict confidentiality and respect for the privileges
and immunities of the United Nations.

B. 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

1. Preparation of files

12. On the basis of the documentation and evidence of violations and abuses that it has collected, consolidated, preserved and analysed, the Mechanism shall prepare files focusing on the criminal conduct of the persons responsible. These shall include the persons most responsible for the crimes, without any distinction based on their affiliation or official capacity. The files shall include relevant information, documentation and evidence in the Mechanism’s possession, both inculpatory and exculpatory, pertaining to the imputable crimes and to the mode or modes of criminal liability recognized under international law, including command or superior responsibility.

2. Sharing information with courts and tribunals to facilitate and expedite fair
and independent criminal proceedings

13. The Mechanism shall share information with national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law, in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards.

14. The Mechanism shall share its information only with those jurisdictions that respect international human rights law and standards, including the right to a fair trial, and where the application of the death penalty would not apply for the offences under consideration.

15. The Mechanism may share information either at the request of national, regional or international courts or tribunals or on its own initiative.

16. The Mechanism shall adopt procedures and methods of work further regulating the sharing of information to facilitate and expedite fair and independent criminal proceedings, duly considering the requirements pertaining to the security of information.

II. Standards and procedural requirements

17. The Mechanism shall adopt procedures, in accordance with international criminal law standards, to collect, consolidate, preserve and analyse documentation and evidence and shall prepare files to facilitate and expedite fair and independent criminal proceedings, with a view to best supporting criminal justice proceedings before a broad range of national, regional or international courts or tribunals that apply a variety of criminal procedures and standards of legal proof. These procedures shall be based on international law and standards, notably the right to a fair trial and other due process provisions under international human rights law, as well as on the jurisprudence, procedural standards and best practices of the international criminal tribunals

18. The Mechanism shall seek to obtain from witnesses and any other sources their informed consent for it to share the information, documentation and evidence in its possession with national, regional or international courts or tribunals, in accordance with the criteria set out below. The consent or lack thereof shall be duly recorded by the Mechanism.

19. The Mechanism shall take appropriate measures to respect and ensure respect for the confidentiality, privacy, interests and personal circumstances of victims, including age, sex, gender and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender-based violence or violence against children.

20. The Mechanism shall adopt procedures and methods of work regarding the establishment of a witness and victim protection unit, with the support of Member States, so as to ensure that all witnesses, victims and any other persons who cooperate with the Mechanism can do so in safety and security.

21. The Mechanism shall provide clear service referral pathways so that vulnerable victims, in particular child victims and victims of conflict-related sexual violence, who come forward to the Mechanism are provided with appropriate medical and psychosocial support.

22. All the materials produced or obtained by the Mechanism, in addition to its work products and analyses, shall be classified as strictly confidential, in line with the United Nations policy on information sensitivity, classification and handling (ST/SGB/2007/6).

23. The Mechanism shall adopt procedures and methods of work regarding chain of custody issues, data protection, information management, case management and archiving and security issues in accordance with international criminal law standards.

III. Cooperation

24. By its resolution 71/248, the General Assembly called upon all States to cooperate fully with the Mechanism, in particular to provide it with any information and documentation that they might possess, as well as any other forms of assistance. States could consider the provision of technical services, such as the protection of witnesses or the provision of specific expertise.

25. The General Assembly also called upon all parties to the conflict and civil society to cooperate fully with the Mechanism to effectively fulfil its mandate and, in particular, to provide it with any information and documentation that they might possess, as well as any other forms of assistance pertaining to the mandate.

26. The General Assembly requested the United Nations system as a whole to fully cooperate with the Mechanism and to promptly respond to any request, including access to all information and documentation.

27. In the implementation of its mandate, notably pursuant to paragraph 6 of resolution 71/248, the Mechanism shall have the capacity to conclude agreements with any State or entity.

28. The Mechanism’s modalities for cooperation shall be further developed in its procedures and methods of work.

IV. Privileges and immunities

29. As a subsidiary body established by the General Assembly, the Mechanism and its personnel, records, archives, property and assets shall enjoy the privileges and immunities, exemptions and facilities provided for in the Convention on the Privileges and Immunities of the United Nations.

V. Relationship with the Independent International
Commission of Inquiry on the Syrian Arab Republic

30. The Mechanism and the Independent International Commission of Inquiry on the Syrian Arab Republic are complementary. Accordingly, while the Commission focuses on directly collecting information, publicly reporting recent broad patterns of violations, abuses and emblematic incidents and making recommendations, notably to Member States, the Mechanism primarily builds on the information collected by others, in particular the Commission, by collecting, consolidating, preserving and analysing evidence and prepares files to facilitate and expedite fair and independent criminal proceedings in national, regional or international courts or tribunals. The mandates of the Mechanism and the Commission are also complementary in that the latter must publicly report on its findings on violations, focusing on recent incidents, broad patterns of violations and abuses and recommendations, notably to Member States, while the former focuses on collecting, consolidating, preserving and analysing documentation and evidence and preparing files concerning individual suspects for future action by national, regional or international courts or tribunals.

VI. Structure and composition

31. The Mechanism shall be headed by a senior judge or prosecutor with extensive experience in criminal investigations and prosecutions, and a deputy with extensive experience in international criminal justice and an in-depth knowledge of international criminal law, international human rights law and international humanitarian law. They should have a proven record of independence and impartiality and be committed to upholding justice, accountability and human rights and ensuring gender equality. They shall be appointed by the Secretary-General upon consultation with the United Nations High Commissioner for Human Rights and the Legal Counsel, for an initial period of two years, which shall be renewable.

32. They shall recruit to assist them in their work a secretariat composed of impartial and experienced professional and administrative staff, with expertise in the following areas, among others: international criminal law, human rights law, international humanitarian law, criminal investigation and prosecution, the military, forensic matters, including in particular digital forensics, forensic pathology and forensic imagery, witness and victim protection, sexual and gender-based crimes and violence, children’s rights and crimes against children.

33. In appointing members of the secretariat, due consideration shall be given to the representation of different legal traditions and gender balance and to appointing staff with the necessary language skills and regional expertise.

34. The Head, the Deputy Head and the secretariat shall exercise their mandate and discharge their functions in full independence and not seek or accept instructions regarding the performance of their duties from any Government or external source.

VII. Reporting

35. The Head of the Mechanism shall submit a report to the General Assembly twice a year on the implementation of its mandate and set out its funding requirements, as appropriate, while preserving the confidential nature of its substantive work.

VIII. Funding

36. The Mechanism will initially be funded from voluntary contributions. In paragraph 8 of its resolution 71/248, the General Assembly decided to revisit the question of the funding of the Mechanism as soon as possible.