Patchwork justice for Syria?

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Wednesday, May 15, 2024: The Syrian Network for Human Rights (SNHR) and the European Center for Constitutional and Human Rights (ECCHR) have released a joint report entitled, ‘Patchwork justice for Syria?’ on the achievements and blind spots in the struggle for accountability regarding the crimes committed in Syria.

The report aims to provide an overview of accountability efforts regarding Syria since 2011 and the main actors involved. To that end, the report analyzes and assesses the main trends and developments in this process, identifies existing gaps and provides an outlook into potential future developments, thus contributing to discussions on what future accountability processes should look like.

The report stresses that all avenues for accountability for international crimes committed in Syria, irrespective of the actor(s) involved, will need to be conducted through third states. This is because, as long as the current Syrian regime remains in power, no genuine investigations into these crimes will take place. On the international level, the report further elucidates, a Russian and Chinese veto in the UN Security Council blocked and, in the future, will certainly continue to block, all efforts to refer the situation to the International Criminal Court (ICC). In light of the above, accountability efforts have had to be centered primarily in third states, which have, often under the principle of universal jurisdiction, achieved some noteworthy results thus far in the quest for accountability for crimes in Syria.

Moreover, the report notes that from very early on, many national authorities in Europe initiated structural investigations on the basis of the principle of universal jurisdiction– in Germany, for instance, such investigations began as early as 2011, with Sweden, France and the Netherlands following soon thereafter.

The report points out that some of the early trials involved European nationals who had joined armed groups in Syria as “foreign fighters” and had later returned to their home countries, where they were then prosecuted under “anti-terrorism” laws and not for the international crimes they had allegedly committed.

These crimes, the report further explains, were well documented by many international bodies, including SNHR, and international civil society organizations (CSOs) like Amnesty International and Human Rights Watch (HRW).

Furthermore, the report sheds light on the criminal complaints that led to the issuance of arrest warrant in France. Additionally, French investigative judges issued three arrest warrants against Ali Mamlouk, Jamil Hassan, and Abdel Salam Mahmoud on charges of complicity in crimes against humanity and war crimes.

Subsequently, accountability efforts, by all actors involved – national prosecution authorities, international fact-finding bodies, and CSOs focused on documentation and/or filing complaints – also led to trials against the main actor responsible for the vast majority of international crimes committed, including torture, enforced disappearance and sexual violence: the Syrian regime.

Elsewhere, the report notes that efforts are also continuing outside Europe, including in the United States, where the Syrian regime has repeatedly been held liable for extrajudicial killings in civil lawsuits. The US Justice Department and the Federal Bureau of Investigation, have jointly been investigating the torture and murder of an American aid worker named Layla Shweikani.

The report adds that, should federal indictment be issued against perpetrator of war crimes, this would be the first instance of the US criminally charging senior Syrian officials.

Further complaints have been filed in Sweden, France and Germany concerning chemical weapon attacks. In Sweden, for instance, a criminal complaint was filed with the Swedish War Crimes Commission in April 2021. The complaint includes information regarding detailed investigations into the chemical attacks on al Ghouta in Rural Damascus ‘Rif Dimshaq’ governorate on August 21, 2013, and Khan Shaykhoun city in Idlib governorate on April 4, 2017, with the complaint alleging that these chemical weapons attacks constitute war crimes and crimes against humanity. On November 14, 2023, a French Magistrate Judge issued an arrest warrant for the president of the Syrian regime, Bashar Assad, his brother Maher Assad, and two other senior regime officials on the basis of their alleged roles in the use of chemical weapons in attacks in Eastern Ghouta in 2013.

As the report reveals, there has recently been another wave of cases being initiated in several European countries against members of armed groups affiliated with the Syrian regime in the armed conflict in Syria, who are now present in the respective jurisdictions.

A key characteristic of the accountability process, the report stresses, is the role played in it by civil society actors. While non-state actors have always played a vital part in documenting war crimes, the Syria case is unique, not only due to the scale and volume of documentation efforts, but also because of the political impact of Syrian CSOs.

The report notes that this line of work has provided Syrian civil society with an opportunity to continue its work of self-empowerment, and to pursue universal values of justice and accountability to the fullest extent possible, despite having been forced into exile.

Despite the above, the report concedes that many of the criminal actors responsible for the commission of grave crimes are completely absent from the investigations and trials that have been conducted so far. To a large degree, this concerns Western corporations, but also powerful states, such as Russia and Iran.

Relatedly, the report notes that almost all state actors involved in the Syrian conflict have been accused of committing international crimes – systematically or in specific incidents –especially Russia and Iran. While these acts have been completely unaccounted for so far, attempts have been made to change that recently.

Moreover, the report notes that the results of these justice processes have also been highly selective. Except for proceedings held in absentia – which are rare and subject to dispute over their legitimacy – only perpetrators who left Syria at their own will, in many cases escaping from their criminal acts – have been forced to stand trial. These perpetrators do not reflect the reality of gross human rights violations in Syria. For example, no senior-level regime official has thus far been convicted. This will likely change with the proceedings in France against leading figures of the regime’s security apparatus, but even with a verdict against them, they remain at large in Syria, still in powerful positions or enjoying their retirement. When prosecutors have deviated from a mere “no safe haven” approach and have managed to obtain arrest warrants against high-level perpetrators, thus embracing a more comprehensive approach to accountability, a first big step towards future trials has been taken.

The report also stresses that cases involving international crimes will – due to their very nature – reflect the overall context of mass criminality, even if only single acts, committed by lower-level perpetrators, are indicted. War crimes, crimes against humanity, and genocide all carry a ‘macro’ element within themselves – an armed conflict, a widespread or systematic attack against a civilian population, or an intent to destroy a group in whole or in part – that also needs to be proven and which will, therefore, always be a significant part of any trial and verdict.

As the report further reiterates, the very fact that justice efforts in Syria have managed to invoke international justice and deliver impressive initial results must be seen as a “major achievement” even if the ICC was blocked. This has been possible, the report notes, thanks to the tireless efforts made by Syrian activists, lawyers, organizations, diplomats, CSOs, artists and politicians.

To that end, the report stresses that impunity in Syria is no longer absolute – the wall of impunity that has shielded regime officials when committing torture and other horrendous offenses is starting to crack, even though they are still committing these crimes today. This fact alone is a miracle for Syrians who, for decades, have grown used to accepting as fact that the power of the state (and its representatives) is absolute and that it answers to no other authority other than the Assad clan.

The report stresses that it has become clear that the UN General Assembly could overcome the deadlock of the Security Council, as evidenced by the establishment of the International, Impartial and Independent Mechanism (IIM), and promote justice and accountability to some degree. There is now a model for an institution under UN auspices, which can secure evidence for an unknown and potentially distant future date when investigations and trials might take place. The same can be said about the creation of the Independent Institution on Missing Persons in the Syrian Arab Republic, even though that body is not focused on accountability. Still, it can help to overcome the Syrian regime’s obstruction of all efforts to shed light on the fate of the many hundreds of thousands of forcibly disappeared persons in Syria since 2011, as well as keeping the issue on the international agenda for the years to come.

The report notes that, despite all of these positive outcomes, the effects remain limited. The legal proceedings have neither led to a recognizable improvement of the human rights situation in Syria, nor threatened the regime’s grip on power in the country. They have not even prevented world leaders from normalizing their relationships with the regime in certain cases. However, when such allegations have been proven in courts of law, it is more difficult for value-based considerations to be cynically outweighed by economic interests or by considerations centered on Realpolitik. Even today, although the Arab League has readmitted Assad, many countries, including in Europe, still reject any formal normalization of relations with Assad’s regime, which has been marked as criminal.

The report adds that it is critical that the ongoing efforts continue in the future. European authorities are still investigating suspects on their territory. That will likely remain an important task for some years to come, for which states need to secure resources for investigators and prosecutors. The role of civil society in these efforts will be to support investigations (especially by Syrian organizations) and, at the same time, to ensure that the rights of victims and survivors in the process are upheld.

The report further notes that in order for such efforts to continue in the future, it is essential that their main drivers continue to receive support, including financial support – especially the IIIM and Syrian civil society organizations. One of the key functions of the IIIM is to serve as a repository for the evidence collected, and it will need to continue in this capacity, in order to support future accountability efforts.

Furthermore, the report notes, in order for international justice to be perceived by Syrians as a credible tool to deal with violence in Syria, it is vital that it is applied equally to all actors in Syria and beyond. The gaps in the accountability process mentioned above, particularly those related to powerful and Western actors, are grist to the mill for those who want to abolish the rules- (and law-) based international legal order, arguing that it is a neocolonial tool of Western states to pursue their interests. Western states’ reactions to the international crimes committed in Israel and Palestine have further amplified this criticism. Therefore, it is vital for international justice in general, and particularly in its application in Syria, that authorities finally start to abolish the double standards in the implementation of international criminal law.