What Justice Can International Law Bring to Syrians?

Asser Khattab is a Research and Communications Officer and Vito Todeschini a Legal Adviser at the International Commission of Jurists, Middle East and North Africa Programme.

On 15 March 2011, dozens of Syrians took to the street in the busy center of the country’s capital, Damascus, to protest against decades of repression, human rights violations and authoritarian rule by the regime of Bashar Al-Assad. Syria’s revolution began shortly after the ousting of Zine el-Abidine Ben Ali in Tunisia and Hosni Mubarak in Egypt, and soon took a tragic turn. Not only did  the regime not relent its total grip on power, but it sought to put a violent end to the protests by unleashing the army and the security forces who killed, tortured and forcibly disappeared many civilians. As well known, the regime’s unabated repression eventually drove the country into a full-scale civil war.

This month marks ten years since the Syrian uprising. Syrians look back at this past decade in despair, contemplating the loss of hundreds of thousands of lives and the massive, forced displacement within and outside the country, as millions lost their loved ones as well as their homes, when their towns and villages were bombed into smithereens.

At the same time, on this anniversary Syrian journalists, activists, human rights lawyers and other citizens are hailing the importance of the several, albeit small steps currently underway to counter impunity for gross human rights violations and crimes under international law committed by the Al-Assad regime and various other actors in the country.

This is also an occasion to retrace briefly the measures taken by the international community in the quest for accountability in Syria, reflecting on their significance in bringing justice to Syrians.

The conflict under international scrutiny

In April 2011, the UN Human Rights Council established the Independent International Commission of Inquiry on the Syrian Arab Republic (COI) to “investigate all alleged violations of international human rights law [IHRL] and to establish the facts and circumstances of such violations and of the crimes perpetrated.” As the clashes between armed insurgents and the regime’s security forces reached the level of an armed conflict, the COI started examining violations of international humanitarian law (IHL) as well. Since then, it has published dozens of reports detailing the violations of IHRL and IHL committed by all parties to the conflict. The COI also devoted a number of reports to the most egregious violations perpetrated in Syria, including enforced disappearances, arbitrary detentions, sexual and gender-based violence, and starvation of the civilian population. While the COI’s investigations are not criminal in nature, its findings may help authorities at the international and national level to identify and investigate possible crimes committed, including war crimes and crimes against humanity.

In addition, in December 2016, the UN General Assembly established the International, Impartial and Independent Mechanism (IIIM) to “collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses and to prepare files” that may be used to bring to justice those allegedly responsible before “national, regional or international courts or tribunals.” The IIIM was entrusted with conducting criminal investigations into alleged violations of IHRL and IHL with a view to national and international criminal trials. So far, the IIIM’s central repository of information and evidence holds more than two million records and, according to its latest report, it has received 92 requests for assistance from 11 competent jurisdictions. The IIIM’s work hence constitutes an important facility to any authorities willing to investigate crimes committed in Syria.

First prospects of justice: universal jurisdiction

On 24 February 2021, the Higher Regional Court in Koblenz, Germany, delivered the first-ever guilty verdict against a former official of the Syrian regime. Eyad A., a former Syrian secret service agent, was sentenced to four and a half years in prison for aiding and abetting crimes against humanity, including torture and arbitrary deprivation of liberty. The trial against a second defendant, Anwar R., the former director of investigations at a Syrian intelligence branch in Damascus and Eyad A.’s superior, is still ongoing. Anwar R. is accused of crimes against humanity for supervising the torture of over 4,000 people between 2011 and his defection in 2012.

The Koblenz Court’s verdict represents a watershed moment. While it is true that both Eyad A. and Anwar R. did not hold high-ranking positions within the security apparatus, the symbolic significance of former regime officials being brought to justice and one of them, thus far, actually being sentenced for his crimes is huge: it shows to Syrian victims and the world at large that justice may be delivered. Such an outcome may also encourage other people to file cases in countries willing to fulfil their obligations under international law and bring those allegedly responsible to justice by applying the principle of universal jurisdiction. This principle allows a State to prosecute crimes under international law – such as war crimes, crimes against humanity, torture and enforced disappearance – committed anywhere in the world, whenever the alleged perpetrators are present on such a State’s territory or are otherwise under its jurisdiction, regardless of their or their victims’ nationality. Universal jurisdiction proceedings against former Syrian regime officials are currently ongoing in Norway, Sweden and Austria, and new complaints have been filed in Germany by the European Center for Constitutional and Human Rights and their Syrian partners.

Some of these proceedings involve high-ranking officials, such as Jamil Hassan, the head of the Syrian Air Force Intelligence Service until July 2019, against whom German authorities issued an arrest warrant in June 2018. More recently, a group of Syrian nationals and NGOs – the Syrian Center for Media and Freedom of Expression, the Open Society Justice Initiative, and Syrian Archive – filed criminal complaints in Germany and France seeking investigations into the regime’s alleged responsibility for the use of chemical weapons in Douma and Eastern Ghouta in 2013, and in Khan Sheykhoun in 2017. If successful, these complaints may end up focusing on the highest echelons of the Al-Assad’s regime.

The great absentee: the International Criminal Court

Many of the atrocities committed in Syria since March 2011 constitute crimes under the Rome Statute of the International Criminal Court (ICC), including indiscriminate attacks against the civilian population, torture, sexual violence, and the use of asphyxiating or poisonous gases. Yet, Syria is not a party to the Rome Statute and, therefore, the ICC has no jurisdiction to adjudicate such crimes for the time being. The only way around this is for the UN Security Council (UNSC) to refer the situation in Syria to the ICC Office of the Prosecutor (OTP). Hopes that the UNSC would  follow the same path it had in Libya, however, were crushed in 2014 when Russia and China cast their veto to prevent such a referral. The fact that Russia intervened successively in the Syrian conflict on behalf of the regime makes the probability of a UNSC referral closer to zero. Not least because Russia’s own military actions, which have reportedly also violated international humanitarian law and may amount to war crimes, could come under the purview of an eventual ICC’s investigation.

Whereas this state of affairs effectively bars Syrians from seeking justice at the ICC, there is a thin chance for the Court’s jurisdiction to be triggered in an alternative way. Indeed, it has been suggested that the ICC may exercise jurisdiction in respect of the crime against humanity of deportation or forcible transfer of Syrians to Jordan – a State party to the Rome Statute. This option would build on the 2018 ICC decision that green-lighted the OTP’s investigation into the deportation of Rohingya from Myanmar to Bangladesh. Such a ruling established that, “if at least one legal element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party”, the ICC could exercise jurisdiction. Hence, the OTP could use this basis to open a preliminary examination into crimes having a cross-border element, entailing their perpetration in Syria as well as in Jordan.

A parallel route: the International Court of Justice

A non-criminal option to bring accountability to Syrians is currently being pursued by the Netherlands and Canada. On 18 September 2020, the Dutch Ministry of Foreign Affairs sent a diplomatic note to inform the Syrian government that “the Netherlands has invoked Syria’s responsibility … under the UN Convention against Torture [CAT] … remind[ing] Syria of its international obligations to cease the violations and offer victims full reparation.” In accordance with the three-step process envisaged under article 30 of the CAT, the Netherlands have asked Syria to enter into negotiations, failing which the case would be submitted to arbitration. If this second step yields no result either, the Netherlands may then choose to bring proceedings against Syria before the International Court of Justice. On 4 March 2021, Canada announced to have initiated the same procedure.

While the International Court of Justice may not determine individual criminal responsibility, it can rule on State responsibility for violations of international law. In particular, it could ascertain the international responsibility of Syria under the CAT, which is engaged by the systematic use of torture against detainees and opponents, and decide on the reparations that victims should be afforded. The International Court of Justice may also order provisional measures aimed at protecting Syrians from torture pending its final determination of the case. While it is highly unlikely that Syria would cooperate in the implementation of orders and judgments of the International Court of Justice, the Dutch initiative is an important avenue to seek non-criminal accountability for torture in Syria, which is complementary to national proceedings under universal jurisdiction. It may also help building diplomatic pressure on the Al-Assad regime, particularly if other States join the Netherlands and Canada in their efforts to hold Syria accountable under international law.

Justice and its limits

For many Syrians, the Koblenz trial and the other efforts to obtain justice for survivors and victims of human rights violations in Syria are small tokens, following ten years of blood bath. Many believe that these steps remain largely symbolic and will have no immediate or direct effect on the situation of Syrians, whether inside or outside the country. The Syrian regime’s torture machine is still active and has not been affected by the Koblenz judgement.

International law cannot, and should not be expected to, make up for the unspeakable suffering Syrians have endured since 2011. It may only provide a few solutions and mechanisms that, in the best of cases, may deliver a limited amount of justice. In addition, international law remains hostage to the political will and geopolitical bargaining of States – as the UNSC and ICC’s inability to act in Syria plainly show.

Set against the magnitude of the Al-Assad regime’s atrocities, very few people are standing trial outside Syria now, or ever will. The minor achievements international law may bring cannot disavow the feeling of many Syrians that the international community has utterly failed them, dashing their ambitions for change, leaving a people and its country alone facing ten years of unfolding tragedies.

On the other hand, the tireless efforts of Syrian and international civil society actors, with the support of a limited number of States, are bringing about some initial results in the fight against impunity. These efforts are to be commended and supported.