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2016 | 2016, S. Falciatori, International Crimes in Syria: Options for Accountability and Prosecution

This thesis focusses on the possibilities of prosecuting the different parties to the Syrian conflict by relying on international humanitarian law and international criminal law. The first part of the thesis analyses the main international crimes committed in Syria by all parties to the conflict. The second part explores what the possible prosecution mechanisms might be for such crimes. The thesis analyses the applicability of these prosecution mechanisms to the Syrian case, in the frame of so called Transitional Justice.

The thesis is divided into six chapters. The first chapter provides an overview of the Syrian situation before the uprising in 2011, and of the various phases and actors of the conflict. The second chapter provides a legal classification of the Syrian armed conflict, so as to understand the sources of law applicable to the specific case. The third chapter analyses war crimes, both theoretically and practically, by offering an overview of three typologies (war crimes against individuals, war crimes with illegal methods and war crimes with prohibited means) committed in Syria, focusing on the main criminal offences and providing examples. The fourth chapter deals with crimes against humanity, with particular focus on the crime of extermination, compared to the crime of genocide. The fifth chapter deals more specifically with the crime of State-sanctioned torture and with the “Caesar case”, a dossier which comprises approximately 45,000 photos leaked by a deserter from the Syrian military police, allegedly proving mass torture by the Syrian government. The sixth chapter explores how crimes are being documented and how files are being prepared for future prosecution. It describes the judicial mechanisms to be used to prosecute the perpetrators in the Syrian conflict, and discusses which mechanisms have already been activated.

The thesis argues that from the evidence collected it emerges that in the Syrian conflict, the main violator of international law is the Syrian regime. According to the author, it not only failed in its obligation to protect its citizens and to prevent and punish the crimes, but it has also planned and implemented these crimes itself. It is argued that data show that of the civilian deaths identified between March 2011 and March 2015, 95% are due to the attacks of the Syrian regime, only 1.5% due to the rebels, and only 1% due to ISIS. According to the author, to ignore these (dis)proportional numbers would mean failing to understand the real nature of the phenomenon and undermining all attempts to bring the perpetrators to justice.

Moreover, the thesis argues that the fact that Bashar al Assad enjoys a certain political legitimacy and Syria still has a seat at the UN raises serious legal and political difficulties. Moreover, the  fact that the regime has the support of powerful allies, two of them (Russia and China) with veto power in the Security Council, is said to limit the prosecution options for the Syrian case. The ICC does not have jurisdiction over Syria, which has not ratified the Rome Statute, and the only chance to bring it before the Court would be through a Security Council resolution that, according to the author, will not be approved, as long as the geopolitical balance does not change.

According to the author, the establishment of an ad hoc international tribunal is unlikely in the near future. Internationalised tribunals, which do not require the approval of the Security Council, could be an alternative; however, they would require the cooperation of Syria, which according to the author will only happen with a change of government. It is argued that universal jurisdiction would be the best alternative. However, it is stressed that this is a limited instrument, since it is more likely to deal with sporadic cases of low-level criminals rather than high-ranking officials.

The article states that while the achievement of transitional justice will take some time since it requires waiting for the (geo)political conditions in Syria to change, the evidence collected so far is solid and irrefutable, both from a qualitative and quantitative point of view. The thousands of original documents ordering executions and mass tortures signed by Bashar al Assad in person which have been collected by the CIJA, will be very difficult to refute, it is argued. Furthermore, the author states that for international crimes no statute of limitations can apply, meaning that these crimes can be prosecuted at any time in the future.

The author argues that to find the best solution, it is necessary to understand the dynamics of the Syrian society, which will have to play a key role in any justice process and whose divisions may hamper this process.