Human Rights Watch said in a report released today. Policymakers and international donors who support credible criminal prosecutions for grave violations in Syria should learn from the successes and shortcomings of accountability efforts in other parts of the world.
The 20-page report, “Syria: Criminal Justice for Serious Crimes under International Law,” underlines the urgent need for accountability and examines a number of concrete measures that would contribute to the fair investigation and prosecution, in a properly constituted court, of people responsible for abuses in Syria. The document outlines short-term actions as well as longer-term policies and practices that countries should adopt to demonstrate their commitment to justice.
“The international community should understand that accountability for the horrendous crimes in Syria will be essential for a durable peace,” said Balkees Jarrah, international justice counsel at Human Rights Watch. “The world will need both a variety of judicial tools for justice in Syria and a long-term vision that avoids pitting one measure against another.”
Human Rights Watch outlined a series of recommendations on accountability, including on the involvement of the International Criminal Court (ICC), criminal prosecutions by Syrian courts, and national prosecutions in foreign courts outside of Syria under the principle of universal jurisdiction. The paper also discusses the potential benefits of a specialized court or chamber within the national justice system that would have both international and Syrian staff and would work with the ICC and other Syrian courts on mass atrocity cases.
Human Rights Watch noted that criminal prosecutions are only one element of a larger justice and accountability process. Broader truth-telling mechanisms, reparations, vetting, economic development, and reconstruction will also be needed as part of the process of moving Syrian society forward in a sustainable way.
Over the last two-and-a-half years, Human Rights Watch has extensively documented abuses by government and pro-government forces and concluded that they have committed crimes against humanity and war crimes. The government continues to conduct indiscriminate air and artillery strikes on residential areas and to arbitrarily detain, torture, and extra-judicially execute civilians and combatants.
Human Rights Watch has also documented serious abuses amounting to war crimes by some opposition groups, including the indiscriminate use of car bombs and mortars, kidnapping, torture, and extrajudicial executions. Human Rights Watch has also documented systematic kidnapping and intentional killings of civilians by some opposition groups that may amount to crimes against humanity.
The Syrian government has not taken any meaningful steps to bring to account government and pro-government forces responsible for violations. The authorities have demonstrated a lack of political will to ensure credible justice for past and ongoing grave human rights abuses. Moreover, there are serious concerns about whether the Syrian judicial system has the capacity to effectively address these large-scale crimes. Opposition forces have not adequately addressed accountability for abuses by their members. As a result, national prosecutions are not an option for now, Human Rights Watch said.
Against this background, Human Rights Watch has urged the United Nations Security Council to refer the situation in Syria to the ICC as a crucial first step toward justice for victims of atrocities by all sides. Sixty-four countries, including six Security Council members, have expressed support for an ICC referral.
A referral to the court could yield short- and long-term benefits. Most immediately, the court’s involvement in the course of the ongoing conflict in Syria would send a clear message to all parties that the commission of grave crimes will not be tolerated and will lead to serious consequences. This credible threat of prosecution may help stem further abuses.
In a post-conflict period, the ICC can play a vital role, given that the Syrian justice sector will most likely be ill-equipped to address complex and politically charged cases. The court can also set a valuable reference point for other judicial initiatives, including national trials.
Even with the ICC’s involvement, fair and effective investigations and prosecutions at the national level will remain essential to narrow the impunity gap. However, beyond the practical difficulties posed by the scale of the violations, it will take time for the national system to be in a position to deliver meaningful justice impartially and independently, Human Rights Watch said.
Indeed, the success of any effort to bolster the national justice system will hinge on the authorities of the day. Without the necessary political commitment to credible justice at the outset, it will also be impossible to consider establishing other national judicial entities, such as a specialized court or chamber focused on atrocity crimes. Those concerns are a reminder about why the ICC was created in the first place, Human Rights Watch said.
Steps can still be taken during the conflict to help prepare the Syrian justice system for any future trials. In particular, concerned governments could support efforts to identify the necessary changes in Syrian law to ensure that domestic law covers international crimes and guarantees a fair trial, including independence of the judges.
“There will, of course, be a need for additional cases in Syrian courts to bring full accountability beyond what the ICC process could yield,” Jarrah said. “But we need to be clear-eyed about what it’s going to take in the long run for fair national prosecutions for the crimes being committed in Syria.”