Seeking Justice and Accountability in Syria

“They called us prostitutes and spat on our faces… I was hanged against a wall for three days, and frequently beaten with an electric cable. I used to pass out from the pain,” recalls a former Syrian detainee who was subjected to torture, including sexual and gender-​based violence, at the hands of government security forces. The United Nations Human Rights Office conducted interviews with nearly 40 detainees who were released from detention centers throughout Syria.  The stories of these individuals represent an infinitesimal fraction of the horror and inhumanity occurring in Syria that needs to be addressed.

The Syrian Arab Republic Government (SARG) has been characteristically brutal in its control over the state, flouting international norms, human rights and legal mechanisms i​n​ its quest to consolidate power. To date, it is estimated that 200-300,000 individuals have gone “missing” in Syria, meaning they could be detained, kidnapped or dead. The exact number is unknown due to the SARG’s shady tactics. Many individuals have been arbitrarily detained for decades without their detentions ever even being acknowledged. ISIS poses an added burden on the security system and state of justice in Syria, adding another layer of complexity to the issue at hand.

Finding justice and bringing accountability to the perpetrators of war crimes and crimes against humanity in Syria is a difficult feat to say the least, with many legal hurdles and ethical concerns to overcome. The Ceasefire Centre for Civil Rights and the Syria Justice and Accountability Centre recently released a report entitled, “A Step towards Justice: Current accountability options for crimes under international law committed in Syria,” which identifies available legal avenues and their feasibility and potential impacts.

The report identifies 4 options:

1. International Criminal Court (ICC): international tribunal located in the Hague that has the jurisdiction to prosecute individuals for war crimes, genocide, and crimes against humanity.
   Feasibility: Syria is not a state party to the ICC and without a UN Security Council Resolution the Court’s jurisdiction is limited. However, the ICC can investigate crimes committed by any nationals of state parties, so it is still a possibility.
   Impacts: This option is very limited in scope, and could have a negative impact on the justice process in Syria given that some of the most culpable would likely remain immune.
2. Hybrid Tribunals: allow for the possibility to combine domestic and international laws and processes and the potential to prosecute a greater number of perpetrators. However, this method requires consent of the host state or a UN Security Council resolution. There are three options of where to set up the hybrid tribunal: 1) in a neighboring state; 2) an internationally recognized buffer zone inside Syria; and 3) for the special tribunal in Lebanon to expand its investigations.
   Feasibility: Neighboring countries are unlikely to give consent and the international community has taken no steps to establishing a protected no-fly zone inside Syria.
   Impacts: Even if it were feasible, the tribunals would lack impartiality given the political interests that would be involved. The tribunal would also have limited ability to access perpetrators, witnesses and other evidence inside Syria.
   
3. Criminal prosecutions in foreign national courts: national prosecuting authorities in foreign countries can pursue criminal investigations into crimes that occurred in Syria as long as they fall under one of the principles of extraterritorial jurisdiction (active nationality principle, passive nationality principle, protective principle, universality principle).
   Feasibility: At this time, this is the most feasible option.  However, sovereign and state immunities could create some obstacles.
   Impacts: As long as the courts remain impartial, this method would likely have a positive impact on the situation.
4. Civil actions in foreign national courts: Civil actions can be taken in other countries to provide monetary support to individuals who have been victimized in the conflict.
   Feasibility: This option would face great obstacles such as immunity and collecting money on the judgements. However, it could still be feasible.
   Impacts: This option would need to be paired with criminal accountability to have the greatest impact.

Clearly, there is no perfect solution. The third option, criminal prosecutions in foreign national courts, appears to be the best bet at this time. Even though none of the options are ideal, it is important to begin the justice process now, because there may never be a perfect option, and imperfect justice is better than no justice at all. Furthermore, the only possibility of deterrence working is if tribunals are set up immediately.

That being said, it is important that the tribunals are not set up haphazardly. They must adopt fair trials to ​prosecute all sides ​of the conflict.​ Because of the complicated nature of the conflict and the many parties involved, it may be necessary to create a multiple tier solution with different levels of trials. Multiple mechanisms would​ be necessary because of the abundancy of ​crimes in Syria. The international community needs to begin this process immediately and project to the Syrian people that accountability is coming.