Alternative Mechanisms for Pursuing Accountability in Syria

Publication Date: 
Thursday, January 19, 2017
B. Diab / UNHCR

“Flouting the most basic rules governing the conduct of war has become contagious,” wrote U.N. Secretary-General Ban Ki-moon in his report for the World Humanitarian Summit last year. “The brutality of today’s armed conflicts and the utter lack of respect for the fundamental rules of international humanitarian law on care for the wounded and sick, humane treatment and the distinction between civilians and combatants threaten to unravel 150 years of achievements and cause a regression to an era of war without limits.”

Many of these violations have been committed with impunity in recent conflicts, spawning widespread frustration with international mechanisms for accountability and justice.  The unraveling of international norms that Secretary-General Ban speaks of has been witnessed most acutely in Syria, where systematic and widespread violations of international humanitarian law (IHL) run the gamut of existing war crimes. This includes indiscriminate, disproportionate, and targeted attacks against civilians and civilian objects, schools, medical facilities, and humanitarian actors; the denial of humanitarian aid and use of starvation as a weapon of war; sexual violence; the use of chemical weapons; and the intentional destruction of cultural property.

In the face of such widespread violation, however, the prospects of accountability in Syria for violations of the laws of war have often appeared dim or far afield. This is especially the case given the veto of attempts to have the UN Security Council refer the situation in Syria to the International Criminal Court (ICC). In this context, what are the prospects for accountability in Syria, and what alternative mechanisms are available to pursue such accountability?

This blog explores the feasibility of utilizing a number of alternative – and underutilized – avenues for enforcing international humanitarian law in the Syrian context. Beyond the ICC, it considers other mechanisms for criminal enforcement, including ad hoc international criminal tribunals, hybrid domestic-international bodies, and domestic courts. It also considers mechanisms for the civil enforcement of the law, including through the International Court of Justice (ICJ), arbitration or claims commissions, as well as diplomatic mechanisms for promoting compliance with international law. With international criminal justice for Syria stalled, it is these alternative avenues which offer greater hope for justice in the near term.

Limitations of international criminal justice mechanisms

Despite the prevailing frustrations, international criminal justice has made great strides in the decades since the post-World War II Nuremberg Tribunal at holding individuals accountable for serious violations of international law. From the establishment of the ad hoc UN tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) in the 1990s, and several other international and hybrid domestic-international tribunals (e.g. for Cambodia, Sierra Leone, Lebanon), to the International Criminal Court (ICC), which began operations in 2003. As the Syrian case has highlighted, however, the jurisdiction of these international courts generally depends upon the consent of affected states or the international community via a decision by the Security Council or another international legal body, resulting in enforcement gaps where such consent is absent. While the possibility of prosecuting violations by the parties to the conflict in Syria before the ICC or a specifically created ad hoc international tribunal is thus stalled at the moment, it is by no means foreclosed for the future, pending the emergence of such a political consensus, for instance in the case of a regime change in Syria. For this reason, a variety of efforts are ongoing to document and investigate violations in order to facilitate future prosecutions. Victims’ and human rights groups are also continuing to lobby for ICC investigation and prosecution of crimes, especially in the case of the genocide purportedly commited by ISIS forces against the Yazidi people in Iraq and Syria.

The pursuit of alternative mechanisms for criminal enforcement

In the absence of international criminal enforcement in the near term, efforts to pursue accountability for violations in Syria are focusing on a number of alternative enforcement mechanisms with greater feasibility. This includes the enforcement of international law through domestic legal systems, as well as through alternative international mechanisms and hybrid courts.

With regard to the domestic enforcement of international law, it is important to recall that for all the attention to international criminal law mechanisms like the ICC, the enforcement of IHL remains primarily the responsibility of states. IHL is primarily structured around domestic enforcement, and warring states have primacy with regard to enforcement. This applies to criminal responsibility for serious violations in several ways. Under IHL, States have an obligation to “investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects.” As the ICRC notes, “Where States are unable or unwilling to prosecute alleged perpetrators in their territory or under their jurisdiction, and when international courts cannot exercise jurisdiction, the exercise of universal jurisdiction by other States, offers a subsidiary basis for ensuring accountability and addressing the impunity gap.” Relatedly, under the international criminal law (ICL) principle of complementarity, cases may only reach international criminal mechanisms when the state is “unwilling or unable” to carry out a genuine investigation or prosecution domestically.

Under IHL, states may exercise universal jurisdiction over “grave breaches” of the Geneva Conventions of 1949 and Additional Protocol I of 1977, as well as serious violations of other international instruments including the Hague Convention for the Protection of Cultural Property (1954) and its Second Protocol (1999), the Convention against Torture (1984), and the International Convention for the Protection of All Persons from Enforced Disappearance (2006), as well as over war crimes under customary IHL. Under universal jurisdiction, states may punish specific crimes of universal international concern, such as war crimes, crimes against humanity, genocide or torture, even though such crimes did not take place on their territory.

A number of such cases are proceeding in Europe against suspects from the Syrian conflict. The influx of displaced persons from Syria, Iraq and elsewhere, for instance, has provided an opportunity for European states, including Germany, France and Sweden, to access victims, witnesses and suspects among migrants and asylum seekers arriving within their jurisdictions, enabling a number of investigations, arrests and prosecutions of war crimes suspects to proceed thus far. European states may also exercise domestic and universal jurisdiction over their nationals who are implicated in crimes as foreign fighters in Syria, if such persons return. These cases are important to advance justice, though their relatively limited numbers, and reach to lower-level perpetrators, means that much more is needed to have a real impact.

Another available mechanism for enforcing international law is through domestic or hybrid domestic-international mechanisms in national jurisdictions, based not on universal but territorial and personal jurisdiction. A prominent example of this is the War Crimes Chamber in Bosnia and Herzegovina, as well as in other states of the former Yugoslavia, which have been established to complement the work of international mechanisms (namely the ICTY) through investigations and prosecutions of war crimes at the domestic level. Such an initiative is currently underway by the Kurdistan Regional Government (KRG) in Iraq to establish an independent tribunal with jurisdiction over the core international crimes of war crimes, crimes against humanity and genocide. While the process is still underway, the planned court would purportedly be an internationalized mechanism within the Kurdish justice system, composed of both international and Kurdish judges, and with a seat in northern Iraq. Such a tribunal could offer a means of prosecuting ISIS fighters and others for international crimes commited in Iraq. Given the limited jurisdiction and capacity of international courts, such domestic prosecutions offer an opportunity to dramatically extend accountability for serious violations of international humanitarian law, as well as to implement their duty to ensure to ensure compliance with the law during peacetime and wartime.

Additionally, the UN General Assembly passed a resolution in December 2016 calling for the establishment of an Independent Mechanism to assist in the investigation and prosecution of serious violations of IHL and IHRL commited in Syria. In cooperation with the Independent International Commission of Inquiry on Syria, the Mechanism is intended to facilitate criminal proceedings, whether by international, regional or national courts or tribunals. This is an important development which could help bring justice to Syria in the future, though in the shorter term the Mechanisms is likely to face a number of challenges, including with regard to its mandate, funding, ability to operate on the ground, and interaction with other mechanisms. As U.S. Ambassador to the U.N. Samantha Power stated, “This mechanism’s work will likely be technical and reside mainly behind the scenes. But it has the potential to play a crucial role in facilitating what we all know must come – a reckoning for what has happened in Syria.”

Civil enforcement of international law

There are also alternative means of enforcing international law through civil, rather than criminal, mechanisms, including through international courts, arbitration or civil claims commissions. The primary responsibility of states with regard to the enforcement of IHL also applies to civil responsibility, although this has been rarely utilized thus far. Under Article 3 of Hague Convention IV (1907), “A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.” A similar provision is contained in Art. 91 of Additional Protocol I to the 1949 Geneva Conventions.

A variety of international mechanisms exist to handle civil claims resulting from violations of IHL or other international law. States may pursue such claims against each other before the International Court of Justice (ICJ) or the Permanent Court of Arbitration, for instance; these cases often consider the legality of the use of armed force by states (jus ad bellum), as well as the legality of the conduct of warfare (jus in bello, or IHL). Examples of ICJ cases considering IHL violations include: military and paramilitary activities in Nicaragua (1986); the advisory opinion on the legality of nuclear weapons (1996); the legality of the use of force in Serbia; armed activities on the territory of the Congo; the prevention and punishment of genocide in Bosnia and Croatia; and the advisory opinion on legal consequences of the construction by Israel of a wall in the Occupied Palestinian Territory (2004).

Nonetheless, the pursuit of accountability for IHL violations before the ICJ is perhaps even more difficult than before the ICC, given the jurisdictional and other limitations of the court. Such cases may also be more effective against states parties than non-state armed groups, though even their significance in affecting state practice is up to question due to the often limited political will to comply with their rulings. Even if not legally enforced, however, ICJ rulings can have a significant political and normative impact. Such civil cases may serve as an alternative model for achieving some justice for Syria. An ICJ case against Syria has been considered, either through a “contentious proceeding” lawsuit by other states against Syria for the regime’s violations of international laws such as the Convention against Torture, or through a request by the UN General Assembly for the Court to issue an advisory opinion on “any legal question” regarding Syria.

States may also pursue civil claims against each other on a bilateral or multilateral basis, such as through civil claims commissions. Though this has also been rare, though examples include the United Nations Compensation Commission (UNCC), established by Security Council resolution in 1991 to process claims relating to Iraq’s invasion and occupation of Kuwait in 1990-91, and the Eritrea-Ethiopia Claims Commission, established in 2000 via a bilateral peace agreement between the states. Relying on agreement between the parties, such mechanisms are more likely to be implemented as part of a peace agreement or post-conflict process of transitional justice than during an ongoing conflict, where the model of compensation payments may be preferred. Conveivably, Iraq or another affected state could negotiate with a subsequent Syrian regime for the settlement of claims resulting e.g. from the actions of ISIS.   

Moving beyond state responsibility, individual victims also have a right to remedy and reparation for serious violations of IHL and human rights. As outlined in the Basic Principles and Guidelines (‘Van Boven/Bassiouni Principles’) adopted by the UN General Assembly in 2005, this may take the form of restitution, compensation, rehabilitation, satisfaction or guarantees of non-repetition. Article 75 of the Rome Statute of the ICC, providing for reparation to victims, further enshrines these principles. Individual victims may also pursue civil claims in domestic courts; as is being pursued in the case of the wrongful death lawsuit against the Syrian government filed in U.S. courts by the family of journalist Marie Colvin, who was killed in Syria in 2012. Greater utilization of alternative civil justice mechanisms such as these could strengthen accountability for IHL violations, such as those commited in Syria, especially in concert with criminal and civil accountability.

Finally, given the limited feasibility of utilizing some of these criminal and civil enforcement mechanisms for Syria in the near term, it also bears examining alternative diplomatic mechanisms for promoting compliance with international law and norms. In addition to the diplomatic efforts of states or UN bodies, IHL also envisions a role for neutral third party intermediaries to promote compliance. For instance, the Geneva Conventions provide for the designation of “Protecting Powers” (neutral states which are not party to the conflict) to supervise the implementation of IHL. Since the Protecting Powers system relies on state consent, however, it has not been used much in recent years, and remains of questionable effectiveness; rather, the ICRC has filled this role in practice in its engagement with parties to conflict. Along with the Swiss government, the ICRC is also engaged in an ongoing initiative to improve compliance with IHL by developing stronger international mechanisms, pending agreement by states.

The International Humanitarian Fact-finding Commission (IHFFC) may also serve this protective purpose; in addition to conducting investigations into serious violations, the IHFFC is mandated to facilitate respect for the IHL through its “good ofices”, pending the consent of the concerned states; however, it has yet to be triggered. “Good offices” may involve a variety of nonbinding elements, depending on the nature of the controversy, but generally including the facilitation of communication between disputing parties, providing procedural suggestions, assessments of fact, or making recommendations for the resolution of disputes. Diplomatic engagement is also critical to the proactive promotion of international law to prevent future violations. As with other mechanisms, however, this too depends on the consent of states. States already under scrutiny for IHL violations may be incentivized to cooperate with such processes in order to avoid further penalties, or to settle ongoing disputes, though governments as determined to resist international norms as the Assad regime.

Conclusion

Amidst the widespread violation of international humanitarian law in the Syrian conflict, and the limited feasibility of standard mechanisms for international criminal enforcement, it is essential that states and the international community pursue alternative means of achieving accountability in the near term. While continuing to seek eventual ICC prosecution of the most serious crimes commited in Syria, it is necessary to ultilize all available avenues for enforcement, both national and international.

The need to pursue all available avenues for enforcement includes actions to facilitate future international criminal accountability, such as continuing to investigate and document violations and the identities of suspected perpetrators, and support for the establishment of new international mechanisms or tribunals where existing mechanisms have proven insufficient. Utilizing all available avenues also entails obtaining justice and assistance for victims through means of civil enforcement, before the slow arm of international criminal justice is brought into motion. As the war in Syria continues, violations of humanitarian law have contributed to the devastating toll of the conflict on Syria’s civilian population, half of which has been displaced internally or abroad. They not only deserve an immediate end to the bloodshed and emergency humanitarian assistance, but a reasonable hope of justice and reparation. Without such efforts to raise the costs of violation, bring justice to perpetrators and assistance to the victims, violations are likely to continue to cause inordinate harm to civilians in Syria – and as the reverberations are already visible, in other conflicts around the world.

 

For more discussion of challenges and opportunities for pursuing justice in Syria, and to hear from additional experts and practitioners engaged in these efforts, tune in to next month's ATHA podcast

 

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