Justice for Syria: Lessons from Innovative Tools for Accountability

09 October 2018   ·   Sareta Ashraph

Justice remains elusive in the case of Syria. With the UN Security Council blocked, the hope of securing justice rests with national prosecutors. The IIIM was established to organise the largely uncoordinated documentation effort, necessary to support prosecutors. But for states seeking accountability, two questions loom: what could have been done better? And what more can, and should, they do?

When it comes to pursuing justice for the Syrian people, the why has never been in doubt. The conflict, and the unrest which preceded it, have been a theatre of unrestrained brutality, a consequence of the warring parties' utter disregard for international law. Over the last eight years, dozens of entities - non-governmental, governmental, and UN-mandated - have documented violations of international law in Syria. The Independent International Commission of Inquiry on the Syrian Arab Republic, established by the UN Human Rights Council in August 2011, has published over 15 reports documenting crimes against humanity and war crimes committed by the Syrian government as well as a number of armed groups.

While sporadic political negotiations have carefully skirted the issue of accountability, justice for the Syrian people - or at least a reckoning for those who committed these crimes with impunity - has always been held up as being non-negotiable. Layered into this is an increasingly urgent need to reassert the value of international law. Achieving justice has largely been understood as the holding of criminal trials. Consequently, the immediate and continuing focus has been on gathering and preserving potential evidence not only of the crimes themselves, but also of the criminal responsibility of those further up the chain of command.

The growing importance of national trials for international crimes

Syria is now one of the best-documented crime scenes in human history. On the frontline of documentation efforts have been Syrians themselves. Facing immense danger, Syrian civil society organisations, activists, and journalists collected and preserved significant amounts of information, and continue to do so. Their work underpins efforts to secure accountability. Yet, as evidence accumulated, the Syrian war - which was drawing in an increasing number of international actors and interests - laid bare the paucity of existing approaches to international justice. With Syria not party to the Rome Statute, the only viable path to the International Criminal Court was through a UN Security Council referral. In May 2014, a draft Security Council resolution to make such referral - supported by over 65 countries - was vetoed by Russia and China. No other attempt has since been made. The idea of establishing some variation of an ad hoc tribunal for Syria never made it to a serious debate: it, too, would require Security Council consensus.

With the Security Council unable to reach agreement on referring the situation in Syria to justice at an international level, it is most likely that the sparks of accountability will find their fuel in the tinderboxes of the domestic courts, as the recent conviction of the commander of the Syrian armed group Ghoraba as-Sham in German courts shows. Yet national prosecutors, even those who work in specialised units, encounter significant challenges when it comes to investigating and prosecuting international crimes committed in Syria. Chief among them - aside from the salient matter of apprehending defendants - is the fact that they face a deluge of information collected during multi-year documentation efforts, conducted by numerous organisations with little coordination, and using different methodologies and standards of proof. 

Current donor practices hinder collaborative approaches 

Two factors drove this multitude of documentation. First, there was little lateral communication among donors as to the types of documentation projects that they were funding, with the consequence that there were often similar projects run by different organisations, sometimes operating in the same places and targeting the same population. Second, donors tended to fund projects that were directed towards relatively short-term objectives, often with tangible deliverables (such as trainings being delivered, guidance material being produced, or testimonies of survivors being taken). Donors were less likely to fund projects that were inherently collaborative or which aimed to improve coordination practices among those undertaking documentation work on the ground.

The adverse impact of these donor practices were manifold: survivors of particular types of violations, notably torture and sexual violence, were unknowingly interviewed on multiple occasions by different organisations; interviewing practices varied widely, increasing the likelihood of re-traumatisation of survivors; there was no uniform protocol followed regarding the collection of physical evidence and open source material, potentially affecting its probative value; and organisations seeking funds were effectively competing with each other, vastly reducing the possibility of much-needed collaboration. There was also a notably gendered impact: female-led organisations, particularly those which took more collaborative and participatory approaches, received less funding. The result was a mass of documentation divided among multiple organisations, in an environment where an entrenched reluctance to discuss or share information had developed. The consequence was no one - not prosecutors, donors, or the organisations themselves - understood what the totality of the evidence of crimes was.

Limited intra-donor communication is perhaps an inevitability given the independent nature of their decision-making. This is particularly so in regard to states, as decisions over who and what they fund are often a reflection of their national values and interests. Nevertheless, international donors such as Germany can have a tremendous impact by prioritising the funding of collaborative initiatives among those undertaking documentation work on the ground. They can - and should - ensure that grantees employ properly trained staff well-versed on the protocols of interviewing traumatised individuals, and of collecting and preserving documentary evidence. They should also support - politically and financially - entities that are established to organise the vast and often unruly documentation effort.

IIIM’s financial stability must not depend on political vagaries

In December 2016, the UN General Assembly established the International, Independent and Impartial Mechanism, or IIIM. Headed by Catherine Marchi-Uhel, the IIIM is charged with collecting, consolidating, preserving, and analysing evidence that could be quickly moved before a tribunal, whether national or international, with jurisdiction over crimes committed in Syria. Marchi-Uhel has stated that the IIIM is preparing case files and has engaged with war crimes investigative units of various states - including in European countries, whose courts can exercise universal jurisdiction to prosecute. The IIIM embarked upon a particularly collaborative approach in its interactions with grassroots organisations, drawing them closer not only to the IIIM, but also to each other. It has also sought to include organisations that often are not represented at meetings in Geneva, notably groups without ready access to Europe, and Syrian women's rights organisations. 

The IIIM's work is likely to be particularly important to national prosecutors, notably in Germany and Sweden where the war crimes units have taken a particularly active approach. The IIIM, despite its being the most likely means of ensuring justice for the Syrian people, is funded through voluntary contributions, forcing its senior officials to go on fundraising missions and rendering the IIIM's financial stability hostage to political vagaries. It is essential, if the commitment to justice is to bear any weight, that states support efforts to move the IIIM's funding from voluntary contributions to the regular UN budget. States should consider whether to share, under agreed conditions of confidentiality, information held by its own intelligence agencies. Similarly, as donors, states are in a position to require their grantees to work effectively with the IIIM. As the Syrian conflict becomes less intense and new political realities take hold, the IIIM will need continued support from states, e.g. Germany. Finally, if justice for Syria is to be found in domestic courts, states will need to support - with resources and political backing - their own specialised investigative and prosecutorial teams.

A broader reach of transitional justice needed

As the world begins to grapple with the complexities of a post-conflict Syria, murmurings about the broader reach of transitional justice are becoming louder. Discussions about reparations (be they individual, collective, material, and symbolic), memorialisation, and legislative and institutional reform have been slow in coming, a likely consequence of the unpredictability and intensity of the on-going conflict.

For now, attention continues to focus on the spectre of a defendant in a dock, and a fair trial. The crimes committed in Syria have long provided the why; the IIIM is the best answer thus far to the question 'how'. The Syrian people and their allies continue to wait impatiently for justice to arrive. When? Soon, we hope.

English Transitional Justice UN-Sicherheitsrat Syrien

Sareta Ashraph

Sareta Ashraph is the former Chief Legal Analyst on the Independent International Commission of Inquiry on the Syrian Arab Republic (IICI), and a former consultant to the International, Independent and Impartial Mechanism for Syria (IIIM).