Accountability For War Crimes In Syria
Having started in 2011, the conflict in Syria has claimed more than 400,000 lives[1], wounded more than a million and displaced more than ten million in last six years. This humanitarian catastrophe, which is unmatched since the end of World War II, has prompted allegations of war crimes against the parties to the conflict. Not only have the Russian and Syrian forces been repeatedly accused of committing war crimes, but due to its support for certain rebel groups the US has also been incriminated with complicity in war crimes. Consequently, there have been calls for investigation and accountability for the alleged atrocities committed by both state and non-state actors.
The ineluctable aftermath of widespread violence in a country is a challenge that impedes the path of justice. More often, it is the lack of political will for impartial and independent criminal prosecutions that impedes the path of justice, especially where the government itself is involved in the crimes.[2] Moreover, countries torn apart by war do not have enough resources and expertise to carry out complex judicial proceedings. However, there are many avenues available to address a situation, such as the one in Syria. Starting from the Nuremberg trials, several mechanisms have been used to redress international crimes. This includes the setting up of a permanent International Criminal Court (ICC) in 2002 to prosecute war crimes, crimes against humanity and genocide.
Nonetheless, despite being a beacon of justice, the ICC has failed the people of Syria so far. This, to a certain extent, owes to the fact that ICC lacks territorial jurisdiction over the crimes as both Syria and Iraq are not party to the Rome Statute, the founding treaty of the ICC. The only way for the ICC to get territorial jurisdiction over Syria is if the Security Council refers the situation to the Prosecutor of the ICC[3]. However, the unwillingness on behalf of the states surfaced in 2012 when the then Secretary of State Hillary Clinton said prosecuting Basher-al-Assad would not be ‘useful’ to peace. It was not until 2014 that the United States finally referred Syria to the ICC, which was met with a double veto by Russia and China.[4] The ICC can only act on its own initiative if it exercises personal jurisdiction over the nationals of member states that have joined the fight in Syria. In her statement, the Prosecutor of the ICC has acknowledged the possibility of trying nationals of Tunisia, Jordan, France, United Kingdom, Germany, Belgium, Netherlands and Australia.[5] However, as the foreign fighters are mainly in the lower ranks of ISIS, it would be impossible for the ICC to prosecute its leadership, who would fulfil the criteria for prosecution under the SRome Statute.
Dejected by the ICC, attention must be turned to alternative options that can be used. One of the several possibilities can be a stand-alone international tribunal like the ones established for former Yugoslavia and Rwanda. These tribunals are conventionally established outside the country of conflict and comprise of international law experts from around the world. However, a stumbling block for the creation of such a tribunal would again be the lack of direction from the Security Council.[6] Nevertheless, the second model could be the hybrid or mixed-international entity such as a special court for Sierra Leone, set outside national judiciary and Extraordinary Chambers in the Courts of Cambodia[7], set within the domestic system. These kinds of courts are typically established to some extent through an agreement between United Nations and the state where the crimes were committed and are generally located in the same country.[8] Hybrid tribunals typically apply international criminal law in conjunction with the domestic law of the state, and include both international and local jurists.[9] Finally, a domestic court can be created on the model of the Iraqi High Tribunal. It is part of the domestic judicial system, prosecuting serious crimes committed in the country. In order to set up such a tribunal, a United Nations Resolution is not required, instead legislation by the Syrian government is sufficient.
A hybrid tribunal can prove to be a viable solution for the conflict in Syria. As a specialised tribunal that focuses only on one situation with certain crimes, it can effectively prosecute perpetrators belonging to different ranks. However, these ad hoc tribunals or special courts are not easy to set up. In the prevailing circumstances, all efforts to establish a tribunal or special court in Syria would go futile as allegedly the present government itself is involved in the atrocities. Hence, setting up a tribunal in one of the neighbouring countries might be rejected by most of the Syrians and will not only face lack of cooperation but will also hinder the establishment of a more credible tribunal in post-conflict period. Moreover, it has been seen from past experiences that building a highly complex institution from scratch is not economical and comes with huge delays. As opposed to this, if a permanent institution is tasked with investigation and prosecution it would be economical and would effectively contribute towards ending impunity in Syria.
Moving beyond the ICC or war crimes tribunal, another option that can be exercised by the states is to exercise extra-territorial jurisdiction over crimes committed in Syria. International law has long accepted the prospects of exercising extraterritorial prosecutions, not only in customary international law but also provided by numerous states in their domestic legislation.[10] Using the principles of active nationality, passive nationality, protective jurisdiction and universality, states are competent to prosecute crimes committed in Syria. Several states have already taken legal action against Syrian fighters in their domestic courts, notable examples of which include Sweden having prosecuted two men of terror crimes in connection with killings in Syria[11] and two Iraqi migrants having been detained in Finland on suspicion that they had been involved in the massacre in Tikrit, Iraq.[12]
Criminal prosecutions in foreign national courts could be a momentous step towards ending impunity in Syria and could send a positive message to the people of Syria who have gone through the horrors of war. However, despite the likelihood of such prosecutions, certain practical and legal complexities would obstruct the path of justice in domestic courts.
Firstly, the immunities granted under international law for ‘official acts’ would impede prosecution for certain perpetrators. Heads of state and foreign ministers, at a minimum, enjoy absolute immunity while in office[13] and once they leave office, immunity remains only for acts that were performed in an official capacity.[14] the
Secondly, a major challenge faced by the prosecutors in such cases is the unavailability of evidence. In both the Swedish and Finnish cases, authorities used as evidence the videos distributed by ISIS.
Additionally, the fact that local prosecutors will have no access to the Syrian soil and also no possibility of getting in touch with the witnesses would further hinder their efforts to acquire evidence.
Finally, certain states have complex laws that do not allow such prosecutions to happen. For example, in November 2016,[15] lawyers in Germany submitted a complaint against Basher-al-Assad under German law which allows the exercise of universal jurisdiction for international crimes.[16] However, Basher-al-Assad’s absence in the German jurisdiction makes it quite unlikely that the case would ever reach even the investigative stage, as according to domestic law the accused has to be present in the German jurisdiction.[17] Exercising extraterritorial jurisdiction over crimes committed in Syria seems to be the most realistic option so far. Using international court/tribunals for accountability is desirable but requires international consent, which is still lacking. Hence, states can act on their own initiative to hold the perpetrators accountable.
The path towards international criminal justice has been arduous and fraught with obstacles, but the change is now irreversible. Accountability for war crimes is the norm, hence calls for an end to impunity in Syria can no longer be ignored. The only way to move forward is to act in conformity with our precedents of holding war criminals accountable through international courts and tribunals. This objective can only be achieved if the ICC Prosecutor is allowed to take up the baton. However, this is not the first time that Security Council has failed to deliver. There have been numerous situations in the past when, in the midst of international crisis, the Security Council was crippled by the use of veto. Finally, foreign courts can also play a critical role to uphold accountability in Syria. This can be achieved by exercising extraterritorial jurisdiction over the crimes. Universal jurisdiction makes it possible to prosecute the perpetrators of grave crimes, who are not prosecuted by the national authorities or any other international court.
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References:
[1] There are different numbers reported by different organisations, however UN Special envoy for Syria has estimated that 400,000 people have been killed throughout the past five years. http://foreignpolicy.com/2016/04/22/u-n-envoy-revises-syria-death-toll-to-400000/
[2] See for example, Human Rights Watch, Turning Rhetoric into Reality: Accountability for Serious International Crimes in Cote D’Ivoire, April 4, 2013. https://www.hrw.org/report/2013/04/03/turning-rhetoric-reality/accountability-serious-international-crimes-cote-divoire
[3] Article 13 (b) of the Rome Statute of International Criminal Court (last amended 2010) 17 July 1998
[4] More information available at un.org/press/en/2014/sc11407.doc.htm
[5] More information available at https://www.icc-cpi.int/Pages/item.aspx?name=otp-stat-08-04-2015-1
[6] Both, ICTY and ICTR were created through Security Council resolution. UN Security Council, Security Council resolution 827 (1993) [International Criminal Tribunal for the former Yugoslavia (ICTY)], 25 May 1993, S/RES/827 (1993). UN Security Council, Security Council resolution 955 (1994) [Establishment of the International Criminal Tribunal for Rwanda], 8 November 1994, S/RES/955 (1994)
[7] UN-administered hybrid courts were also established in Kosovo and East Timor.
[8] SCSL Agreement, art. 10 (Setting seat of the Court in Sierra Leone). UN/Cambodia Agreement (ECCC Statute) arts 43 (setting location of the court as Phnom Penh)
[9] SCSL Statute, art. 12.1 (regarding international and domestic judges); UN/Cambodia Agreement (ECCC Statute) arts. 9-13 (regarding international and domestic judges)
[10] see Universal Jurisdiction: A preliminary Survey of Legislation around the world, p.2, in total 163 of the 193 UN member states’ can exercise universal jurisdiction over one or more crimes under international law, either as such crimes or as ordinary crimes under national law.’ Notable example of this include UK, where three parliamentary acts provide jurisdiction to British courts over crimes committed outside their territory, namely, Geneva Conventions Act 1957, Criminal Justice Act 1988 and International Criminal Court Act 2001.
[11] http://www.huffingtonpost.com/huff-wires/20151214/eu-sweden-terror-crimes/
[12] https://www.nytimes.com/2015/12/25/world/europe/finland-iraq-refugees-isis.html?_r=0
[13] ICJ, Arrest Warrant of 11 April 2000 (DRC v Belgium), judgement, 14 Feburary 2002, 54-61.
[14] It is pertinent to note here that whether immunity will be granted or not remains a matter justiciable for domestic courts. Certain courts have held that official acts do not include international crimes, see R v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (Pinochet No 3) (HL(E)) [2001] 1 AC 147. Moreover, immunity is not bar for prosecution in front of international tribunals or courts, see art. 27 Rome Statute of the International Criminal Court 2002 and art.7 of the ICTY Statute
[15] http://www.aljazeera.com/news/2016/11/german-lawyers-seek-criminal-case-syria-assad-161128141943783.html
[16] Germany: Act to Introduce the Code of Crimes Against International Law [Germany], 29 June 2002
[17] See Strafprozessordnung (StPO) (“German Code of Criminal Procedure”), entered into force April 7, 1987, sections 230 and 231a
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