Dr Caroline Sweeney
The Preamble to the Rome Statute of the International Criminal Court evokes a dream of international criminal justice; a world where ‘unimaginable atrocities’ do actually ‘shock the conscience of humanity’ and states are actually determined to end ‘impunity for the perpetrators of these crimes’. The nightmare that is currently unfolding in North-Western Syria, and from which the international community has largely averted its gaze, is arguably closer to the present reality. UN reports suggest that 900,000 people have been displaced in Idlib since the start of December 2019 and are now living in indescribably difficult conditions near the closed Turkish border. At least 12 children have perished to death in recent weeks. The primary causes of the displacement are indiscriminate attacks by pro-government forces supported by Russian air-power and pro-Iranian militias as part of a final push to recover the last opposition-held Syrian province by force.
The attacks are but the latest in a relentless series of atrocities perpetrated by all sides in the various armed conflicts that have erupted in Syria since the Assad regime’s initial repression of predominantly peaceful pro-democracy protests in March 2011. As a result, over half a million lives have been lost, over six million people have fled the country, and six million more remain internally displaced. The Syrian authorities have declined to initiate genuine and effective investigations and prosecutions of those responsible for these international crimes, which is hardly surprising given that many high-ranking officials have been implicated in their commission. Furthermore, instead of cooperating to ensure accountability, external actors have exacerbated the situation by prioritising their own interests in Syria. Indeed, during their respective interventions in Syria, influential external actors, including Russia, Iran, Turkey and the US-led Coalition against ISIS in Syria, have been accused of committing serious violations of human rights and international humanitarian law, some of which may amount to war crimes and/or crimes against humanity.
The International Criminal Court (ICC) is probably the most suitable forum for prosecuting alleged perpetrators. However, the Prosecutor has yet to open an investigation due largely to difficulties in establishing a precondition for the exercise of jurisdiction. Syria is not a state party to the Rome Statute, and Russia and China vetoed the UN Security Council’s attempted referral of the situation in Syria to the Court in 2014. Their vetoes were unsurprising. Russia, along with Iran and Hezbollah, is a long-running ally of the Assad regime, and has provided it with vital military, political and logistical assistance since the unrest first started in 2011. China, in turn, has consistently evinced a principled opposition to any perceived erosion of the principles of non-intervention and sovereign equality under international law. The Russian and Chinese vetoes were broadly condemned, including by the US. However, this condemnation rings somewhat hollow given that the US, like Russia, has consistently vetoed UN Security Council resolutions critical of its allies, most notably, Israel. Furthermore, the US has insisted upon the inclusion of exemption clauses in resolutions referring situations to the ICC. Significantly, these clauses would have effectively placed alleged perpetrators of international crimes committed in Syria from non-state parties to the Rome Statute – including the US, Russia, Iran and Turkey – beyond the Court’s reach.
Faced with such geopolitics, creative international lawyers and civil society activists have championed innovative and novel mechanisms for speaking law to power. In the early years of the unrest, some lawyers proposed the creation of an ad hoc hybrid tribunal mandated to apply a mixture of international and domestic law, and composed of a combination of domestic and international judges. However, as numerous analysts pointed out (see, for example, here, here and here), several potentially insurmountable obstacles stand in the way of any such tribunal concerning funding, location and, most importantly, legitimacy.
More recently, a team of UK-based lawyers argued that the ICC could exercise jurisdiction on a territorial basis over alleged deportations of Syrian civilians from Syria to Jordan because part of the alleged crime of deportation took place on the territory of Jordan, which is a state party to the Rome Statute. However, pursuing accountability through this avenue is also problematic for numerous reasons. First, it only captures a fraction of the international crimes committed in Syria since 2011. It doesn’t acknowledge the suffering of victims outside of Jordan, including the hundreds of thousands of children currently trapped in a hellish no-man’s land on the Syrian-Turkish border. In legal terms, it may be difficult to prove that the refugees were displaced to Jordan as a result of the coercive acts of pro-government forces and that those pro-government forces actually intended to displace Syrian civilians across an international border to Jordan or were ‘virtually certain’ that this would occur in the ordinary course of events as a result of their actions. From a practical perspective, securing access to suspects is likely to pose a problem given that the Syrian authorities will invariably refuse to cooperate with the Court, and many neighbouring Arab states, including Jordan, may also be reluctant to cooperate given their ongoing rapprochement with the resurgent Assad regime.
Securing access to evidence may not be quite so difficult as, from the very early stages of the unrest, civil society activists and the UN Independent International Commission of Inquiry on the Syrian Arab Republic (the ‘UNCOI’) have been documenting violations of international law in Syria, including those that may amount to international crimes. Even more significantly, in 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. The Mechanism is not a prosecutorial body; however, it operates as a central repository for evidence collected from multiple sources, including the UNCOI. Its staff includes international criminal lawyers who are specifically mandated to prepare files aimed at eventually facilitating independent criminal prosecutions. Should the geopolitical situation ever evolve dramatically enough to render comprehensive accountability an actual possibility, the Mechanism is likely to prove a vital resource.
Indeed, the Mechanism has already provided assistance to actors in European states pursuing accountability for crimes committed in Syria through domestic prosecutions. Initially, these domestic efforts focussed predominantly on prosecuting returning nationals, who had travelled to Syria to join jihadist groups such as ISIS, for domestic terrorism-related offences on the basis of active nationality. However, under customary international law states may also exercise universal jurisdiction over war crimes, crimes against humanity, genocide and torture, even if the traditional grounds for exercising jurisdiction are absent. This essentially enables states to exercise jurisdiction over international crimes committed in Syria even absent a jurisdictional link to the perpetrator (active personality) or the victim (passive personality). Indeed, recent developments offer some grounds for optimism regarding the possibility of this jurisdictional mechanism being effectively deployed to achieve more even-handed justice for Syria. Most notably, the first trial of former senior Syrian officials for alleged acts of torture is due to commence in Germany this year. The German Federal Court of Justice has also issued an arrest warrant for Jamil Hassan, the former head of the Syrian Air Force Intelligence Service and a notoriously brutal cog in Syria’s state-sponsored torture machine.
These domestic efforts have important symbolic value as they indicate that parts of the world are currently off limits for certain high-ranking Syrian officials with blood on their hands. Nevertheless, due in part to logistical obstacles, they can only ever achieve a very partial and selective form of justice for Syria. Accordingly, it is crucial that victims’ expectations are managed in order to bridge the gap between political promises and political realities. This gap is reflected in a recent UN General Assembly Resolution concerning the human rights situation in Syria. On the one hand, the Resolution repeatedly emphasises the need for accountability for international crimes committed in Syria. On the other hand, it welcomes the recent establishment of a UN-sponsored Constitutional Committee, which in reality is playing second fiddle to the existing Astana peace process sponsored by Russia, Iran and Turkey. Even the most rose-tinted observer would likely concede that the Astana process is primarily aimed at maintaining the Assad regime in power and ensuring the continuing impunity of its underlying members. Indeed, the former UN Special Envoy to Syria, Staffan de Mistura, recently admitted that he resigned from the post as he could not stomach the inescapable prospect of having to shake the hand of the ruthless but victorious Assad.
Despite comments from the present UN Special Envoy to Syria, Geir Pederson, that the launch of the Syrian Constitutional Committee is a ‘sign of hope for the Syrian people’, neither it nor the Astana process are likely to resolve the massive displacement crisis triggered by the conflict. It is still not safe for most of the six million Syrian refugees as well as the internally displaced Syrians currently trapped in Idlib to return to government-held areas. Any returning Syrians who are perceived to have in any way supported the opposition risk arbitrary arrest, detention and persecution. Hence, any solution (i.e. ‘victor’s justice’) that emerges from the current Syrian peace process is unlikely to promote genuine reconciliation or the reintegration of disaffected opposition supporters. It is also unlikely to facilitate sustainable peace and thus any ‘peace before justice’ argument is difficult to maintain in the present Syrian context.
And yet, what are the alternatives. In the Syrian situation at least, it is hard to argue with the realist perspective enunciated as early as 431 BC during the Peloponnesian War, when the military superior Athenians pragmatically informed the militarily inferior Melians: ‘we shall not trouble you with specious pretences… since you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.’ Thus, for realists, aspirational demands for justice for Syria are but ‘specious pretences’ as the powerful can and will violate the rights of the weak with impunity unless and until another powerful actor determines that it is in their interests to help the weaker actor to defend itself. Indeed, the US-led coalition against ISIS only intervened in Syria in 2014 to ‘degrade and ultimately destroy’ the terrorist group as it threatened Western interests, including in neighbouring Iraq. Russia only intervened militarily in Syria at a pivotal moment in 2015 to prevent the then seemingly inevitable defeat of its long-term ally, the Assad regime, and re-assert its relevance in the broader Middle East. Turkey in turn launched three military interventions in Syria in response to the perceived threat posed to its security by the ascendant Kurdish-dominated ‘Rojava’ region in North-eastern Syria, which Turkey feared was fuelling aspirations of Kurdish nationalism amongst its own long-repressed Kurdish minority. In so doing, Turkey was supported by Sunni Arab fighters who shared its opposition to both secular Kurdish autonomy and the Assad regime. Their task was made easier after the US President, Donald Trump, decided to effectively abandon America’s erstwhile allies, the Syrian Kurds, to their fate as their utility had seemingly been exhausted given that ISIS had in Trump’s opinion been ‘defeated’.
Turkey has maintained a military presence in Idlib since September 2018 when it negotiated a de-escalation agreement together with Russia and Iran under which Turkey and Russia agreed to contribute troops to enforce a demilitarized zone in the province. However, the ceasefire collapsed in 2019, when pro-government forces began attacking areas held by the Islamist armed group, Hay’at Tahrir al-Sham (HTS). The recent intensification of hostilities in Idlib has resulted in Turkish military casualties prompting the Turkish President, Recep Erdoğan, to threaten a major military intervention to both protect Turkish military personnel and create a safe zone for Syrians. In reality, Erdoğan probably fears that a regime victory in Idlib could trigger a mass exodus of Syrians across the infamously porous Syrian-Turkey border, which HTS has proven quite adept at patrolling. Accordingly, Turkey’s motivations for intervening in Syria are less humanitarian and more self-interested.
Thus, despite the Rome Statute’s inference that ‘all peoples are united by common bonds’, the experience to date in Syria suggests that a genuine and concerted effort by the international community to alleviate the suffering of the Syrian people and achieve justice on their behalf is unlikely in the near future. Perhaps jaded by almost a decade of horrific images emanating from a conflict in a faraway land to which there appears to be no solution, humanity has seemingly turned its back on Syria. That said, humanitarian motivations aside, a realist argument can be advanced that the Syrian conflict poses a threat to international peace and security, and therefore demands an adequate response. The so-called ‘migrant crisis’, which was largely triggered by events in Syria, has already had serious ramifications for Europe, including arguably in the indirect form of Brexit. More immediately, as indicated previously, there are presently 900,000 internally displaced Syrians effectively trapped between advancing pro-government forces and the closed border with Turkey. Their numbers are growing by the day. The longer that they are left to languish in these inhumane conditions, the greater the risk that some amongst them will be compelled to join armed factions, including HTS, whether through forcible recruitment, material necessity or as a way of making sense of their suffering. At the same time, Turkey is refusing to take in any more Syrian refugees and, like Lebanon, is seeking to return the 3.5 million refugees that it already hosts. Hence, these individuals will be looking for somewhere else to go and Europe may pose an attractive destination. Indeed, Erdoğan has previously threatened to send millions of Syrian refugees to Europe if European states do not support his proposals to resettle them in a safe zone in Northern Syria.
Thus, even if one takes a purely realist perspective, it is arguably in the self-interest of Western states to make a greater effort to use their not inconsiderable influence to push for a more balanced and sustainable resolution to the Syrian conflict instead of allowing states aligned with the Assad regime to dominate the peace process. As Pederson observed, there needs to be political will and ‘a deeper understanding’ between the former superpowers in order to propel the peace process forward. Should a more balanced peace process emerge, there would also be a greater chance of achieving more comprehensive and even-handed accountability. Nevertheless, until such a potentiality materialises, the creative efforts referred to above that have been undertaken to date to achieve individual criminal responsibility for international crimes committed in Syria are to be applauded. Arguably, partial justice is better than no justice at all so long as victims’ expectations are kept in check.
Finally, justice extends beyond the criminal domain. Syrians often continue to face barriers when seeking to access their rights after they leave Syria having effectively departed one battleground for another. On an individual basis, efforts can be made to challenge the type of victim-blaming narratives pedalled by some self-serving politicians seeking to dehumanise ‘Syrian immigrants’ as ‘terrorist risks’ rather than refugees to whom legal obligations are owed under international law. One could even argue that these individual efforts are necessary to avoid implicit complicity in the continuing denial of justice for Syrians.
Dr Caroline Sweeney is a lecturer at the University of Limerick. Her doctoral research investigated the relationship between international law, international politics and the state using Syria as a case study. The author would like to thank Professor Ray Murphy for his comments; any mistakes are the author’s own.
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