- The Need to End Impunity and Move to Accountability -
In March 2011 hundreds (and then thousands) of Syrian citizens started a series of peaceful protests across the Syrian Arab Republic, starting in Dara’a, the cradle of the revolution, calling for democratic reforms. The response of the Syrian President Bashar Al-Assad and his autocratic Government however was to meet these protests with acts of brutal violence. On 20 March 2011 Security Forces opened fire on anti-government protesters at a peaceful demonstration in Dara’a killing more than 20 civilians.
Four years on, Syria is still in a state of bloody conflict, approximately 250,000 civilians have been killed by organs of the Syrian State machinery. Tens of thousands of civilians have been arbitrarily arrested, starved, tortured and executed in secret detention facilities across Syria. More than 150,000 civilians are believed to remain in detention. The use of chemical attacks and indiscriminate targeting of civilians through the use of ‘barrel bombs’ has been well documented and more than 10 million Syrians have been displaced. Despite this almost unparalleled humanitarian crisis, the international community has yet to act decisively.
The indifference of the international community is compounded by recent statements declaring that there must be a political solution to the mounting crisis and that any political solution must include President Bashar al-Assad. Such a statement is deeply disturbing on a number of levels.
The Syrian people deserve more. They deserve democratic reform. They deserve a safe and secure environment in which to return home and start to rebuild their lives. They deserve a process by which those persons bearing the greatest responsibility for acts that constitute war crimes and crimes against humanity.
The International Criminal Court in The Hague was established to end impunity and to establish a mechanism of accountability on the international level. It was established to bring to justice those high ranking political and military leaders who had evaded justice at the national level. It is mandated to put on trial heads of state where no such provision exists in the national legal framework of many states in conflict.
The ICC has no jurisdiction over Syria and that is a serious failure. It has no jurisdiction as Syria is not a State Party to the Rome Statute of the ICC and because Russia and China continues to exercise its veto power over a UN Security Council Resolution to refer the situation to the ICC. It is deeply offensive that a State wields the power to prevent a very necessary accountability mechanism from being implemented, but the wheels of diplomacy rarely move in line with the wheels of justice and accountability.
Recognising that the ICC Prosecutor has both hands tied behind her back there are a number of steps that need to be considered. First, it is quite clear that the UN Security Council requires reform. Whilst it is clear that Russia and China continue to abuse their position as permanent members of the Security Council we must not adopt a position of hypocrisy as the United States, United Kingdom and France have all wielded their kryptonite in relation to matters that affect their national (or strategic) interests. That means the Security Council must be reformed, particularly as far as the ICC is concerned, but that will take time, more time than the Syrian people can be expected to wait. Second, the Rome Statute of the ICC must be amended to allow the court to exercise personal jurisdiction over its nationals who are victims. Presently, personal jurisdiction only extends to the nationality of perpetrators, not victims. That means, for example, the UK may refer a situation to the ICC if a perpetrator is a British national, but it may not refer the situation if countless victims are British nationals. This is a fundamental issue that will continue to impact on the legitimacy of the ICC in delivering justice.
Recognising that the ICC lacks jurisdiction, the discussion has moved to the establishment of an ad hoc tribunal. However, it must be recognised that such a process faces the same challenges as the ICC. There is no possibility of the Syrian Government agreeing to the establishment of an international ad hoc tribunal and there is little prospect of Russia and China agreeing to a UNSC Resolution.
There remains a need to implement a long term strategy aimed at ending impunity and establishing a system of justice based on the rule of law. There are aspects of this process that can be started now, but there needs to be a will and there needs to be a strategy.
Close to a quarter of a million Syrians have lost their lives during a brutal 4-year armed conflict and the region is now experiencing a humanitarian crisis of epic proportions. UNOCHA estimates that more than 10 million citizens are either internally or externally displaced and more than 12 million are in need of humanitarian assistance.
After the failure of the peace talks at the Geneva II Conference on Syria and the appearance of further distinct groups in the conflict namely Jabhat al Nusra and the Islamic State of Iraq and Levant (ISIL/ISIS) (now the Islamic State) the end of the violence seems to be further away than ever.
There is clear evidence of human rights violations having been committed in vast parts of the territory and, according to the UN Commission of Inquiry on Syria, several actors have unmistakably committed war crimes and crimes against humanity.
The Islamic State, which is estimated to have control over one-third of the Syrian territory and significant economic resources, has imposed a brutal form of Sharia law on the territories under its control. The widespread and systematic perpetration of murder, enslavement, rape, sexual violence, forcible displacement, enforced disappearance and torture in territories under the control of the Islamic State would clearly amount to war crimes and crimes against humanity. There are also clear allegations of having committed Genocide in the attacks over the Yazidi minority in Iraq.
It is deeply regrettable that the emergence of the Islamic State, for which the Syrian Regime must take ultimate responsibility, has moved the discussion away from holding Assad accountable and looking to him as a regional partner in addressing the very serious risk posed by the Islamic State.
In order to deal with the mounting crisis in Iraq and Syria one must first deal with the Syrian Regime. There have been comparisons between Assad and Stalin – the latter becoming a partner of the west, despite his brutal oppression of his own people, in order to defeat Hitler. However, it was not Stalin who created Hitler. Hitler did not emerge as a threat to Stalin’s rule. Assad bears many of the hallmarks of Stalin, but there are clear, and well documented allegations, that demonstrate a state policy of detention, torture, starvation and execution on a truly massive scale that is only comparable to final solution.
Assad’s responsibility: the ‘Caesar’ evidence
There is no doubt that the Syrian Military, Security and Intelligence Forces under the command of Bashar al-Assad have and continue to commit to act with absolute impunity. Their conduct over the course of the last four years that include arbitrary arrest, detention, torture, mass starvation, extra-judicial killings, use of prohibited weapons and means of warfare constitute the gravest forms of international crimes on a scale not seen since the Holocaust. It has deliberately and indiscriminately bombed civilian areas and used indiscriminate methods and means of war – such as cluster bombs, barrel bombs and chemical weapons– that has massacred civilian populations with the sole intent of destroying any opposition to its dictatorial rule.
Moreover, the evidence that forms the “Caesar File” is irrefutable proof of the Syrian Regime’s acts of atrocities. Caesar, a military photographer previously working under the Syrian Regime, obtained several thousand images of civilians who had been tortured, starved to death or murdered whilst held in a number of detention facilities under the command the Syrian Military Intelligence and Security Agencies.
A significant number of bodies showed signs of bloodstain, strangulation, electrocution and torture. According to the recent report of the UN Commission of Inquiry on Syria, detainees are often sexually assaulted.
These photographs give graphic testimony of the execution of several thousand civilians; murders carried out in an industrial scale, in what has been considered Assad’s “machinery of death”. Indeed, the evidence of images and individual testimony demonstrates that the killings were committed following a highly bureaucratic process that was part of a state policy targeting the civilian population on a massive scale. These acts constitute war crimes and crimes against humanity as defined under the Rome Statute of the International Criminal Court.
Witnesses have repeatedly stated that more than 150,000 civilians remain in Assad’s jails, being subjected to torture, mass killings and probably, starvation. Assad’s policy of “Kneel or Starve”, that included the bombings of bakeries in rebel held territory and the blockade of humanitarian convoys, is also evident in the pictures, as most of the corpses show clear signs of emaciation.
Assad, ISIS and the International Community
Despite the Islamic State’s cruelty and radicalism, and the need to confront the risk it poses to regional stability, it remains patently clear that Assad cannot be seen as a strategic partner for the West in the battle against Islamic extremism, given the brutality and scale of atrocities committed under his regime.
The International Community cannot support those who systematically violate those rules recognised by civilised nations and compromise the minimum standards of human rights established by regional and international law. It would erode the most basic principles of justice and accountability and further deepen impunity.
The battle against the Islamic State is not more important than the 60-years-long one to secure and internationalize respect for human dignity. Those who commit such grave acts of atrocities, whether they be from the Islamic State or the dictatorial regime of Bashar-al-Assad must be held accountable in a court of law.
It is of critical importance to note that, according to credible information, victims have been identified among the detainees depicted in the ‘Caesar material’ that are citizens of European, North American and Middle East states, some of whom are State Parties to the International Criminal Court.
At the end of last year a British Court issued a ruling holding the Syrian Government responsible for the arrest, torture and execution of a British national. The Court ruled that Dr. Abbas Khan, a physician who travelled to Syria to give needed medical assistance to civilians, was unlawfully killed. The Court rejected outright the Syrian Government’s plea that Dr. Khan had commit suicide. The jury held unanimously that he had been unlawfully killed.
The torture and murder of thousands of civilians, including European nationals, under Assad’s rule should be treated with the same seriousness and gravity as the execution of foreign nationals by the Islamic State and other militant groups.
Therefore, far from aligning with a regime that has tortured and killed its own nationals; those states that claim to push for accountability should use the “Caesar” evidence as a firm basis to push for the immediate establishment of an ad hoc international criminal tribunal for the situation in Syria. Further, in the absence of any international judicial mechanism States should initiate criminal proceedings against the civilian and military leadership in their own jurisdictions.
The Syrian Government is not part of the solution. It is not a strategic partner. It is not an ally of the West. It is a clear and present danger to regional stability. For this very reason, it is deeply disturbing and of the utmost concern that US Secretary of State John Kerry used the anniversary of the Syrian revolution, after close to a quarter of a million civilian deaths, not as an opportunity to condemn, or to build consensus with the Syrian people, or to demand justice for those thousands murdered at the hands of the regime. Instead it was used as a platform to raise the likelihood of opening dialogue with Bashar-al-Assad.
Assad is not and cannot be seen as a partner and to consider his Government as a strategic partner in developing a peaceful resolution to the crisis is a further violation of the rights of those citizens who have lost loved ones at the hands of the regime, and an insult to those who have lost their lives by the hands of its actors.
There can be no peace without justice. Yes, there must be a political resolution. However, there cannot be one-sided negotiations with the very cause of the crisis.
Opening criminal cases against those persons bearing individual criminal responsibility at the national level, claiming the principles of universal jurisdiction, is a credible option.
Assuring accountability is the least the international community could do after its negligent lack of action to stop the outrageous human rights violations committed in Syria over the last four years, which has allowed perpetrators to continue to operate with impunity. This was recognised by the UN Commission of Inquiry on Syria, which has called upon the international community “to adopt a common and effective strategy to address the impunity gap in the Syrian Arab Republic”.
Therefore, the international community should continue working to end violence in the area, attend the humanitarian needs of millions of Syrian citizens and support a process of political transition that ensures justice, accountability and reconciliation to achieve a long-lasting peace.
The international community must now:
- Reject Assad as a political or strategic partner;
- Assist those seeking to investigate crimes committed within Syria’s territory; and
- Pursue accountability of state and non-state actors as a matter of urgency.
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