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2015 | SJAC & Ceasefire Centre for Civilian Rights, A Step towards Justice - Current accountability options for crimes under international law committed in Syria

This report explores the currently existing accountability options to prosecute the international law crimes committed in Syria.  In the first part it evaluates the feasibility and the impact of each option, then the practical and ethical issues. This study allows a better assessment of whether pursuing justice while the conflict is on going is advisable.  The different options examinedinclude the International Criminal Court (ICC), the potential for hybrid tribunals, criminal prosecutions in foreign national courts, and civil actions in foreign national courts.

Although the ICC has jurisdiction over war crimes, crimes against humanity, and genocide, in the Syrian situation two of the three possible legal triggers of its jurisdiction are not present. Firstly, Syria is not a state party to the ICC. Secondly, a UNSC draft resolution aiming to refer the situation to the ICC was vetoed by China and Russia in May 2014. That leaves one remaining avenue of access to the ICC: a proprio motu initiative by the ICC Prosecutor’s to begin an investigation into alleged crimes committed by nationals of states parties to the ICC, in relation to the Syrian conflict. However, this represents the least favourable route to ICC prosecution of alleged war criminals, since its scope would be very limited from the outset: the ICC’s mandate is to prosecute those who bear the greatest responsibility for crimes, but it would only be able to pursue high-ranking foreign members of extremist groups or senior Syrian officials with dual nationality.  Yet in the Syrian situation, the foreign fighters who are nationals of states parties are low-ranking members of extremist groups. Consequently, the ICC’s limited jurisdiction over the Syrian situation not only makes prosecution almost unfeasible, but also undermines its impact.

The option of a hybrid tribunal, while the conflict is still ongoing, is fraught with practical as well as juridical obstacles. Hybrid tribunals rely on a combination of international legal provisions and domestic laws of the state hosting the trial and, of course, depend on the host state’s willing consent. While the conflict is ongoing the most feasible means of creating a hybrid tribunal dealing with the Syrian situation would be to establish it in a neighbouring state or in an internationally-protected buffer zone within Syria.  However, the likelihood of any of Syria’s neighbouring states consenting to extend its criminal jurisdiction over Syrian matters, is very small indeed. As for a protected buffer zone, the international community has, as yet, taken no steps towards the establishment of a no-fly zone for humanitarian purposes or to hasten an end of the fighting. The chances of getting agreement from all sides for a no-fly zone to protect judicial proceedings against alleged war criminals, seems at present, negligible. Finally, in the pre-transition period such a tribunal would have very limited access to perpetrators, witnesses and other sources of evidence inside Syria. It is also very difficult to imagine a scenario in which such a tribunal could guarantee impartiality at the present time.

National authorities of foreign states can prosecute criminal acts committed outside their territory if one of the principles of extraterritorial jurisdiction is present: the active nationality principle (the alleged perpetrator is a citizen of the state in question); the passive nationality principle (the victim is a citizen of the state in question); the protective principle (the crimes committed threaten the national security of the state in question); or the universality principle (the crimes committed are such that they threaten the international community or the international order).  The authors suggest that this may be the most feasible option as a first step towards establishing accountability for crimes committed in the Syrian situation, during the pre-transition period. It represents a relatively low-cost method that can be implemented with relative efficiency. However, it is crucial to ensure that investigations are even-handed and not restricted only to opposition figures and counter-terrorism cases. That said, sovereign and state immunities can create obstacles to holding high-level Syrian (or other) government officials accountable.

Foreign national courts can also undertake civil actions against individuals in order to procure monetary remedies for victims. These actions would depend on national legislation of the host state. Again, state immunity may be a real obstacle to the enforcement of civil claims against government officials. The report underlines the necessity of seeking reparations for victims in tandem with pursuing criminal prosecutions in order to maximise an overall positive impact.

 The second part of the report discusses a number of serious practical and ethical challenges facing foreign national trials of actors involved in the Syrian conflict. These include the likelihood of in absentia trials, (which remain highly controversial), the possible risk of double jeopardy for the defendants, obstacles to investigative access and witness protection difficulties. Moreover the report highlights the importance of 'connecting and interacting' with the Syrians in order 'to ensure they can understand why certain actions are being taken, and how these actions might lead to a more comprehensive justice process post-conflict'. Furthermore impartiality of the current processes will be determinant. Indeed actual and perceived bias would certainly badly affect the prospects of long-term justice and accountability

 To conclude, the authors affirm that postponing justice might be preferable to an inherently flawed process. They argue for delaying justice until the political climate in Syria is more conducive to the implementation of a more comprehensive approach to accountability. Nevertheless, in their opinion, if steps toward accountability were to be taken in the pre-transition period, prosecutions in foreign courts are likely to have the greatest short-term impact. It will be of paramount importance to carefully weigh the risks and potential benefits of any mechanisms employed.