One of the IAPB’s objectives is to investigate gross human rights violations constituting crimes under international law allegedly committed in the run-up to the presidential elections in Belarus in 2020 and its aftermath.
Gross human rights violations constituting crimes under international law include torture, enforced disappearances and extrajudicial killings. They also include crimes against humanity, committed through these acts or other conduct, such as acts of sexual violence, arbitrary detention and persecution. According to reports by UN actors and non-government organisations, these crimes are alleged to have been committed in the Belarus context.
The IAPB will not investigate other violations of international human rights law which do not constitute crimes under international law.
The IAPB will verify and preserve the information and evidence it collects with a view to supporting national criminal investigative and prosecuting authorities that have or may have jurisdiction over alleged perpetrators of crimes under international law committed in Belarus. Depending on their legal framework, national criminal prosecuting authorities may exercise jurisdiction over alleged perpetrators under the principle of universal jurisdiction, which allows states to investigate and prosecute perpetrators of certain crimes under international law even if such crimes were committed in other states. For example, the universal jurisdiction framework in Germany allows for the investigation and prosecution of alleged perpetrators of certain crimes under international law irrespective of their nationality, the nationality of the survivors of the crimes or the location where the crimes were committed. The IAPB will support national criminal prosecuting authorities by sharing with them the information and evidence it has collected, and analytical products based on that evidence, where the criteria set out in the IAPB Standard Operating Procedures No. 7 on the receipt and sharing of information evidence (SOP No. 7) are met. Such criteria include that the national criminal justice system is compliant with international human rights law and standards, that the death penalty cannot be imposed or carried out and that sufficient guarantees are in place to protect survivors and witnesses.
On a case-by-case basis, the IAPB may also support other judicial or quasi-judicial proceedings or human rights mechanisms who broadly contribute to preventing gross human rights violations, ensuring accountability for crimes under international law allegedly committed in Belarus or facilitating access to other remedies and reparations by survivors of them. The criteria the IAPB will apply to such determinations are set out in SOP No. 7.
Belarus has not ratified the Rome Statute, the founding treaty of the International Criminal Court (ICC). Although it is subject to investigation, information currently publicly available indicates that the alleged perpetrators of crimes under international law in Belarus are likely to be Belarussian and that the crimes were committed on Belarussian territory. Accordingly, to exercise jurisdiction over Belarus as a non-State party, the ICC would need an ad hoc declaration accepting the court’s jurisdiction by Belarus, or a Security Council resolution referring the situation in Belarus to the International Criminal Court. Since neither has occurred thus far, the ICC does not have jurisdiction over all crimes committed in Belarus.
Three States neighbouring Belarus, namely Lithuania, Poland, and Latvia, are States Parties to the Rome Statute. Based on a decision on jurisdiction issued in the Myanmar situation, the ICC could potentially exercise jurisdiction where the crimes committed in Belarus have cross-border elements, namely that one or more elements of the crimes were committed in a neighbouring state. In the situation in Myanmar, the ICC found that the elements of the crime of deportation as a crime against humanity has such cross-border elements. Accordingly, a number of organisations jointly submitted a communication to the Office of the Prosecutor of the ICC under Article 15 of the Rome Statute requesting that it exercise jurisdiction over deportation and other crimes partially committed in the three neighbouring States. The Office of the Prosecutor has not publicly responded to this communication, or given an indication whether it intends to open a preliminary examination into the situation in Belarus, a pre-requisite to the opening of an investigation.
On 29 March 2021, the UN Human Rights Council issued Resolution 46/20, requesting the UN High Commissioner for Human Rights 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;
• make general recommendations on improving respect for and the protection of human rights, and to provide guidance on access to justice and accountability, as appropriate; and
• engage with the Belarusian authorities and all stakeholders, in particular Belarusian, regional and international civil society, international human rights organizations, United Nations agencies, the Organization for Security and Cooperation in Europe and relevant States with a view to exchanging information, as appropriate, and providing support for national, regional and international efforts to promote accountability for human rights violations in Belarus.
The High Commissioner subsequently established the Office of the High Commissioner for Human Rights’ examination of the human rights situation in Belarus (OHCHR Examination), which is due to report on its findings to the UN Human Rights Council at its 49th session in February to March 2022. Unlike the IAPB, the OHCHR Examination’s mandate includes “all alleged human rights violations,” such that it is likely to document and report to the UN Human Rights Council on a broader range of human rights violations than the crimes the IAPB has prioritized.
The OHCHR Examination will also engage in a broader range of advocacy objectives, including by issuing recommendations to Belarusian authorities and other actors on steps necessary to prevent further violations and individuals and state institutions responsible for those committed accountable. Although not exclusively, the IAPB is primarily concerned with establishing individual criminal responsibility.
Additionally, although the OHCHR Examination is mandated to verify, preserve and analyse information and evidence like the IAPB, the OHCHR ordinarily uses the “reasonable grounds to conclude” standard of proof for human rights documentation. While its work will contribute to accountability processes, its standard of proof may not meet the evidentiary standards applicable to a criminal trial, requiring proof “beyond a reasonable doubt” or proof to the “intimate conviction.”
The IAPB is committed to supporting the work of the OHCHR Examination and to the goals outlined in its mandate. The IAPB has been cooperating with the OHCHR Examination during its inception and since its establishment. The IAPB has committed to providing information and evidence to the OHCHR under a data sharing agreement that aims to protect the rights of survivors and witnesses, mitigate any security risks and prevent re-traumatization.