SYRIA: Four years on - combatting impunity for war crimes

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“It is unconscionable that Syrians should continue to suffer as they have for the last four years and have to live in a world where only limited attempts have been made to return Syria to peace, and to seek justice for the victims.”

These were the words of Paulo Sergio Pinheiro as he delivered the latest report of the UN Commission of Inquiry on Syria (COI) to the UN Human Rights Council (HRC) at the end of February. This was the ninth report he has presented to the HRC since the Commission was established and another sharp rebuke to an international community that is permitting the conflict in Syria to enter its fifth year.

The COI has been unwaveringly frank in presenting its evidence. The Commission has documented and reported on the most grotesque rights violations, from public executions to the recruitment of children to be soldiers, child marriage and sexual abuse, but beyond this, the Commission has done its best to call the international community to action and has given voice to the sense of hopelessness in the face of impunity many now feel when faced with the horrors of the war in Syria. In March 2014, Mr. Pinheiro was very clear about the failings of the international community: “the Security Council bears responsibility for not addressing accountability and allowing the warring parties to violate these rules with total impunity”.

CRIN, too, has been reporting on the conflict and the horrendous impact it has had on children across the region since the conflict first erupted (you can read CRIN’s “spotlight on Syria” from last November for full background on the conflict). To mark the grim anniversary, this piece won’t rehearse these facts, but will look at the issue of impunity and what is being done around the world to hold perpetrators responsible for human rights violations committed during the conflict in Syria.

Impunity and the search for justice

The UN, and particularly the Security Council (UNSC), has been widely castigated for its inaction on Syria. The Security Council is uniquely placed to implement measures to put pressure on combatants but also to lay the groundwork to hold those responsible for human rights abuses in the future. In 2014, the Security Council passed resolution 2139 recognising the need to end impunity and bring perpetrators to justice, but this has so far led to no concrete action. Last week, the Security Council passed a resolution condemning the use of toxic chemicals such as chlorine in Syria and calling for accountability, but also falling short of concrete action.

The Commission of Inquiry has called time and again for the UNSC to refer the situation to the International Criminal Court (ICC) or an ad hoc international tribunal. Yet despite its potentially crucial role in setting in motion an investigation that may one day hold those responsible for rights violations in Syria to account, in May 2014, the UNSC rejected a resolution that would have referred the situation in Syria to the International Criminal Court. Syria has not ratified the Rome Statute or itself referred the situation in the country to the ICC, so the only way that the Court would be able to consider human rights violations that have taken place during the conflict would be for the Security Council to refer the situation to the Court. To date, two joint UN-Arab League envoys have resigned in the face of the intractable crisis, while the Arab League has suspended Syrian membership of the organisation but failed to press toward a meaningful peace process or take steps to hold perpetrators to account.

In the absence of international justice, the available mechanisms to hold perpetrators to account dwindle, but are not extinguished. In certain circumstances, the national courts of other States will have jurisdiction over crimes committed in Syria. In the most straightforward cases, States may be able to prosecute their own citizens when they return home after being directly involved in the conflict or for providing support or assistance while within their home country.

Several States have prosecuted nationals for involvement in the Syria conflict, though to date they have primarily relied on anti-terrorism legislation rather than directly focusing on holding people accountable for rights abuses. In May 2014, a British court convicted a man of “preparing for terrorist acts” for joining a military group in Syria. German courts too convicted a man in 2014 for “membership of a terrorist organisation” for joining Islamic State. Though the motivation for these types of prosecution lies in national security, and these terrorism offences are likely to be much easier to prosecute than those related to rights violations, they demonstrate that where national courts are willing to hold their nationals to account for crimes committed overseas, they are able to do so.

In February, Sweden’s Södertörn District Court handed down the country’s first sentence for an offence committed during the Syrian conflict. What distinguishes this case from many of the others that have preceded it in Europe, however, is that it was a conviction for rights abuses rather than a terrorism offence. Mr Mahounnad Droub was convicted for abusing a captured member of President Assad’s forces while fighting for the Free Syrian Army in 2012 and sentenced to five years’ imprisonment. Droub was filmed beating a prisoner who had been tied up and the video had been posted on Facebook. He subsequently fled the country and successfully sought asylum in Sweden, where the ill-treatment came to light and it became possible to launch a prosecution.

It may also be possible to hold non-citizens to account under “universal jurisdiction” which, when part of a national legal practice, allows prosecutors to pursue individuals who have allegedly committed grave international crimes in other countries even if neither the victim nor accused is a national of the prosecuting State.

Some European States have begun gathering information about crimes committed in Syria by interviewing incoming refugees and asylum-seekers who may have witnessed crimes. German immigration officers have in place a mechanism to ask asylum-seekers whether they have witnessed war crimes and whether they are able to identify those responsible. This information gathering can lay the groundwork to prosecute any alleged war criminals should they enter the territory, or support future international or Syrian prosecutions.

It is early days for any potential universal jurisdiction case on crimes committed in Syria, but in other conflicts, this process is a well trodden path. Human Rights Watch released a report in September 2014 documenting specialised war crimes units in France, Germany and the Netherlands which have been using universal jurisdiction to prosecute crimes committed around the world and universal jurisdiction cases arising from conflicts around the world make the news relatively frequently.

In February, for example, a former Nepali army colonel went on trial before a court in London accused of torture committed in Nepal in 2005. The accused was arrested in a UK seaside town while on leave from a UN mission in South Sudan under British legislation which permits universal jurisdiction in cases of torture. In a more high profile case, legal proceedings are moving ahead in Senegal to prosecute former Chadian dictator Hissene Habre for alleged crimes against humanity, war crimes and torture on the basis of universal jurisdiction. In the right circumstances, the mechanisms are in place to hold perpetrators to account, but they require effective preparation, evidence collection and advocacy to make them a reality.

Not a solution but what is left

One of the functions of the Commission of Inquiry has been to identify a confidential list of alleged perpetrators of human rights abuses and to record evidence linking those perpetrators to crimes or violations. The Commission reported on February that it has provided national authorities with information collected during its investigations in order to support national prosecutions and would be willing to supply information to national courts asserting universal jurisdiction where the relevant State was able to meet international fair trial standards.

As Leslie Haskell, international justice counsel at Human Rights Watch has said, “[u]niversal jurisdiction is an essential safety net for victims who have nowhere else to turn”. These legal mechanisms are not a solution to the widespread impunity for crimes committed in Syria, much less a solution to the conflict more broadly, but they are what is left for victims when the international community fails to act effectively to hold human rights abusers to account.

Further reading:

Resources on children’s rights and the conflict in Syria

Resources on universal jurisdiction and war crime units

 

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