Justice for Syria: Civil Society, The UN Mechanism and National Proceedings

By Emma Broches
Monday, November 26, 2018, 8:50 AM

After more than seven and a half years of death and destruction, there is a sense that the Syrian war is coming to an end. Since its decisive victory in Aleppo in 2016, the Assad regime, supported by Russia and Iran, has seized back territory throughout the country, with Idlib as the last remaining area held by anti-regime forces. Syrian human rights activists warn about the risks of agreeing to peace without some form of justice, an argument echoed by Stephen Rapp, the former U.S. ambassador-at-large for war crimes issues.

When the conflict began in the spring of 2011, international institutions and western governments responded to the Syrian government’s violence by expressing grave concern over human rights abuses, imposing sanctions and restrictive measures on senior members of the government, and establishing fact-finding missions. Six months into the conflict, President Obama and six other world leaders called for President Bashar al-Assad to step down. In 2014, Russia and China blocked a Security Council Draft Resolution that would have referred Syria to the International Criminal Court (ICC). (Such a referral would be necessary for the ICC to have jurisdiction over Syria since Syria is not a member state.) More than seven and a half years after the conflict began, the human rights abuses persist, Syria still has not been referred to the ICC, and Assad retains a secure grip on power.

Yet the prospect of accountability for the Syrian conflict is not completely hopeless. Civil society actors such as the Commission for International Justice and Accountability (CIJA) and the European Center for Constitutional and Human Rights (ECCHR) have played an innovative role in documenting and analyzing evidence that can be used in future criminal prosecutions. The UN General Assembly and state actors have also taken steps to bring accountability to Syria. In December 2016, the UN General Assembly established the “International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic Since March 2011” (also known as the IIIM or the Mechanism). At the same time, domestic courts have moved to prosecute Syrian crimes within their jurisdictions. This post will describe the collaborative efforts of civil society organizations like CIJA and ECCHR, the General Assembly Mechanism and domestic criminal proceedings to bring accountability to Syria.

Civil Society

From the start of the uprising, local civil society actors and international NGOs have documented and reported on the excessive violence and abuses committed by the Syrian regime. While non-state actors have always played a significant role in documenting war crimes, the Syria case is unique for the scale and volume of documentation efforts and the strength of the evidence of war crimes. By 2017, there were over 400 individuals and local groups supplying information to Syrian documentation centers, which were in turn collaborating with international NGOs documenting human rights abuses and preparing case files for future legal proceedings. While these organizations operate under different missions, CIJA and ECCHR have been particularly effective in moving the project for criminal accountability forward.

CIJA, a private, non-profit organization, combines international legal experts with locally trained investigators to gather, preserve and analyze evidence and build case files for future prosecution against those most responsible for international crimes in Syria. CIJA has distinguished itself from traditional human rights documentation organizations by investigating “up to a criminal law standard,” so the evidence can be used successfully at trial. It is also unique for its commitment to work with law enforcement. Over the past few years, CIJA has received hundreds of requests for help from prosecutors in war crimes units across Europe who are investigating alleged war criminals.

The ECCHR, a non-profit legal organization, has also been investigating crimes committed in Syria and takes a proactive approach to prosecution. The organization uses the principle of universal jurisdiction to file criminal complaints against senior Syrian intelligence and military officials with prosecutors’ offices across Europe, most recently in Germany and Austria.

Meanwhile, human rights violations are also being documented by international NGOs such as Human Rights Watch and Amnesty International, and national organizations such as the Syrian Network for Human Rights and the Syrian Observatory for Human Rights. While these groups have shared goals, they do not always work together.

The Mechanism

Pursuant to UNGA resolution 71/248, the Mechanism has two main mandates: “to collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses;” and “to prepare files in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law.” Described by the UN as “quasi-prosecutorial,” the Mechanism cannot pursue its own prosecutions, but it is supposed to use the evidence it collects and analyzes to assist other prosecuting institutions.

The Mechanism recently explained that its approach to collection is informed firstly by “its structural investigation,” which is intended to “map crime patterns” and “understand the links between crimes and individuals,” and secondly by the requests for assistance it has received, or anticipates, from national prosecution authorities. (As of July 2018, the Mechanism had received seven requests from three different national prosecution authorities.) The materials collected through these investigations contain “cross-cutting material facts” that are likely to be useful for a wide range of prosecutions and are also intended to expedite the process for the development of its own case files. The Mechanism has put a “significant emphasis” on accruing the evidence that has already been collected by actors like the Commission of Inquiry on Syria and non-profit organizations. Notably, it has already collected more than 900,000 documents relating to violations and crimes committed in Syria. Ultimately, the Mechanism sees this collection resulting in a “comprehensive central repository of evidence concerning crimes committed in Syria.”

In August, the Mechanism announced that it has started to build its own case files and expects to open at least two specific files before the end of the year. The files it develops will be “strictly confidential” and only shared with “jurisdictions that respect international human rights law.” While it is still unclear where these case files will go and what they will contain, the files may be significant in easing the burdens of prosecutors and facilitating national proceedings.

As a “quasi-prosecutorial” body, the Mechanism recognizes its limitations. It is not a court and cannot issue indictments, prosecute cases or render judgments. However, it views those limitations as opportunities to “play a role in promoting a more comprehensive and integrated accountability strategy.” That strategy includes “coordinating effectively with national jurisdictions, civil society and other international actors” and “recognizes the combined role of multiple jurisdictions in ensuring an appropriate measure of justice for the widespread crimes.” (see A/72/764). While the Mechanism can never replace an accountability mechanism that can render judgments, its efforts can at least move some national efforts forward and preserve the possibility of a future tribunal (as Alex Whiting has also noted here and here).

National Criminal Proceedings

Over the past two years, national prosecutors in Europe, often working closely with civil society documentation groups, have started to prosecute individuals who have committed crimes in Syria. While many of these cases have been terrorism prosecutions against nationals who joined an armed rebel group or the Islamic State, there are some instances of war crimes prosecutions of perpetrators from the Syrian regime. (See CJA’s list for a sample of these cases).

Under the principle of universal jurisdiction, some European countries allow prosecutors to indict individuals present in their countries for serious crimes violating international law committed elsewhere. A few countries, like Germany, are unique for having “pure” universal jurisdiction, meaning that national authorities can investigate and prosecute certain crimes (usually war crimes, crimes against humanity and genocide) even if the suspect and offense have no specific link to the country. But for the most part, if the case has no connection to the forum state, a prosecutor will exercise discretion to forgo the case. This has meant that most of the successful national prosecutions have convicted low-level Syrian perpetrators who have immigrated to Europe (e.g. conviction of a low-level soldier in Sweden), and most of the cases against high-level Syrian officials who are still in Syria have been dismissed. For instance, February 2017, the sister of a victim of torture and execution in a regime detention facility filed a criminal complaint in Spain against nine Syrian officials. However, the Spanish court dismissed the complaint for lack of jurisdiction because the claimant had not been a Spanish citizen when the crime was committed and none of the officials were in Spain.

Germany is well positioned to employ a wider and more flexible approach to combat impunity in Syria. In addition to the requisite jurisdictional laws, Germany is currently housing thousands of Syrian refugees who are victims and witnesses of war crimes and crimes against humanity. In 2011, Germany was the first country in Europe to open a structural investigation—a broad preliminary investigation designed to gather evidence on international crimes committed by the regime. This has resulted in specific investigations against ten suspects, but until June 2018, no indictments. (A similar structural investigation was opened in 2014 to gather evidence of international crimes committed by the Islamic State in Syria and Iraq. The investigation has thus far resulted in investigations against 27 specific individuals, and convictions on several occasions).

On June 8, 2018, Germany’s chief federal prosecutor took a landmark step toward holding high-ranking members of the regime accountable when it issued an international arrest warrant against Jamil Hassan, the head of Syrian air force intelligence, for overseeing the detention, torture and killing of thousands of Syrians. Since March 2017, ECCHR, along with two Syrian lawyers and Syrian torture survivors in Germany, have filed four criminal complaints to assist the federal public prosecutor in investigating high-ranking individuals, including Hassan. The federal prosecutor’s office quickly responded to these complaints by calling witnesses to testify. The warrant against Hassan heavily relies on the “Caesar” photographs—a trove of more than 50,000 photographs, plus GPS locations, of individuals who died in government-run detention facilities. The photographs were smuggled out of the country by a former member of the Syrian military police and submitted in an ECCHR complaint to the German prosecutor in 2017. Although the arrest warrant has great symbolic value, it is unlikely to lead to trial because Hassan is safe from arrest in Syria and is banned from traveling to the EU.

On October 8, 2018, Jamil Hassan was targeted again by an arrest warrant from France. Alongside Hassan, the international arrest warrants targeted Ali Mamlouk, Syria’s security chief and one of Assad’s most senior advisors, and Abdel Salam Mahmoud, head of the air force intelligence’s investigative branch at Mezzeh Military Airport in Damascus. The warrants include charges of collusion in torture; forced disappearances; crimes against humanity; and, for Mahmoud only, war crimes. The warrants stem from a long-running case involving two Syrian-French nationals who were arrested in Syria in November 2013 and disappeared after being taken to the Mezzeh Military Airport, which is notorious for the brutal torture methods practiced there. In July 2018, Damascus provided documents that confirmed that both individuals had died in custody. Like in Germany, legal and human rights groups referred the case to the war crimes unit (working with the victims’ family) and the investigations relied on the “Caesar” photographs and witness testimony.

Finally, although not a criminal proceeding, it is worth mentioning the civil suit in the District Court for the District of Columbia against the Assad regime arising from the the murder of Marie Colvin. On February 21, 2012, hours after Colvin broadcasted live to CNN’s Anderson Cooper from a clandestine media center in the besieged city of Homs, Colvin was targeted and killed by a rocket attack. The lawsuit was filed on behalf of Cathleen Colvin, Marie’s sister, and other surviving family members, under the terrorism exception to the Foreign Sovereign Immunities Act (28 U.S.C. § 1605A(c)), which allows suits against certain state sponsors of terrorism. (Syria is one of four states designated as state sponsors of terrorism by the United States.) In their filings, the plaintiffs submitted a wealth of evidence that the regime deliberately targeted Colvin, including two insider accounts from high-level defectors and evidence of the command and control system from confidential government documents. The Syrian government did not respond to the complaint, and the plaintiffs are currently waiting for a ruling on their motion for default judgment filed on March 22, 2018.

The Way of the Future?

Since the end of the 1990s and beginning of the 2000s, nations have been experimenting with using universal jurisdiction to end impunity for serious international crimes. If the Mechanism fully embraces its role as a repository of evidence and a coordination mechanism for documentation groups and national courts, domestic criminal proceedings could become an increasingly viable alternative to international courts. The question is whether the outcome of these proceedings will be meaningful enough for victims seeking justice and far-reaching enough to serve as a deterrent.