1 - What are the different initiatives working on establishing the facts and documenting the crimes being committed in Syria?
2 - What is the Ceasar report? And what are its conclusions?
3 - What is the International Commission of Inquiry on Syria?
4 - How did the International Commission conduct its work in a situation like Syria?
5 - What did the International Commission of Inquiry on Syria document?
6 - Could the ICC have jurisdiction over the crimes committed in Syria?
7 - What would the ICC do different from the previous reports and commissions?
8 - Why didn’t the UN Security Council refer the situation to the ICC?
9 - What has been done by UNSC members to refer the situation to the ICC Prosecutor? What are the countries in favor of or against a referral?
10 - What would be the consequences of an ICC referral?
11 - Can the ICC address the impunity in Syria?
12 - Could an ad hoc international criminal tribunal or a specialised mixed tribunal be established?
13 - Can other States prosecute alleged perpetrators of crimes in Syria? According to which criteria?
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1 - What are the different initiatives working on establishing the facts and documenting the crimes being committed in Syria?
Despite the widespread and nearly systematic repression and violence against those who have been documenting or reporting on the crimes committed in Syria, the Syrian crisis is one of the most documented crisis of the past decades. International and local human rights organisations as well as civil society groups and even individuals have closely monitored and reported on the crimes from the start of the uprising and they have been the first to alert about the perpetration of international crimes including crimes against humanity. In Syria, several groups including the Violations Documentation Center (VDC), the Syrian Network for Human Rights (SNHR) and the Syrian Observatory for Human Rights have started to document and report on human rights violations on a systematic and nation-wide basis since the start of the uprising [1] and made updated information available online.
Other initiatives such as the Syrian Commission for Justice and Accountability and others have also been developed to document crimes, collect evidence and analyse relevant data including those provided by NGOs and other sources aiming to reinforce legal documentation in the prospect of any possible litigation action.
Lastly, the Syrian National Coalition - a coalition of opposition groups - has established a legal office which among others, document violations and gather evidences [2].
2 - What is the Ceasar report? And what are its conclusions?
The Caesar report is a huge cache of evidence smuggled out of Syria, including photographs of around 11,000 detainees’ corpses. The source of the report is referred to as Caesar – a former Syrian military policeman who worked secretly with a Syrian opposition group and then later defected and fled the country. Caesar was a photographer for the Syrian military police and his job was to take pictures of killed detainees. Ten of the photos from the Caesar report were released publicly in January 2014.The report was made available to human rights groups, governments and the UN. It was presented by France on 15 April 2014 at an informal meeting of the UN Security Council as part of a concerted European effort to get Syria referred to the ICC [3]. Syria’s Justice Ministry has dismissed the photographs and questioned its credibility [4].
The 31 page Caesar report includes examinations and remarks from three eminent international lawyers whom examined thousands of pictures and files recording the deaths of detainees in the custody of Assad’s security forces from March 2011 to August 2013. The three lawyers are Sir Desmond de Silva QC, the former prosecutor for the Special Court for Sierra Leone, Sir Geoffrey Nice QC, the former lead prosecutor for former Yugoslavian president Slobodan Milosevic and Professor David Crane,founding Chief Prosecutor of the Special Court for Sierra Leone, he was the one who indicted President Charles Taylor at the SCSL [5].
The graphic photos show thousands of victims, mostly young men; many of the corpses are emaciated, bloodstained and bore signs of torture, strangulation, electrocution and some had no eyes, showing evidence of having had their eyes gouged out. Three experienced forensic science experts examined and authenticated samples of 55,000 images corresponding to around 11,000 victims. The report says, “Overall there was evidence that a significant number of the deceased were emaciated and a significant minority had been bound and/or beaten with rod-like objects.” De Silva told the Guardian that the evidence “documented industrial-scale killing [6].”
The inquiry team said it was satisfied there was “clear evidence, capable of being believed by a tribunal of fact in a court of law, of systematic torture and killing of detained persons by the agents of the Syrian government. It would support findings of crimes against humanity and could also support findings of war crimes against the current Syrian regime.” Professor David Crane said, “Now we have direct evidence of what was happening to people who had disappeared. This is the first provable, direct evidence of what has happened to at least 11,000 human beings who have been tortured and executed and apparently disposed of... This is the type of evidence a prosecutor looks for and hopes for. We have pictures with numbers that marry up with papers with identical numbers – official government documents and we have the person who took those pictures. That’s beyond-reasonable-doubt-type evidence [7].” In lieu of such evidence, French Ambassador Gerard Araud said France would gladly support a referral of all war crimes and crimes against humanity in Syria to the ICC if Russia and China allowed it [8].
Given that the Commission of Inquiry on Syria has also reported on the government’s role in enforced disappearances, arbitrary detentions and cases of death in detention including resulting from torture, FIDH believes that the Commission should investigate those findings and include specific recommendations to the UN Human Rights Council and the Security Council in their next report.
3 - What is the International Commission of Inquiry on Syria ?
The Independent International Commission of Inquiry on the Syrian Arab Republic was established on August 22, 2011 by the Human Rights Council with a mandate to investigate all alleged violations of international human rights law since March 2011 in Syria. The Commission is also tasked to establish the facts and circumstances of such violations and where possible, identify those responsible with a view of ensuring that perpetrators of violations, including those that may constitute crimes against humanity, are held accountable.
4 - How did the International Commission conduct its work in a situation like Syria?
The Commission’s investigations have relied primarily on first-hand accounts to corroborate incidents, most of which have come from interviews with people in hospitals and camps in Syria’s neighboring countries. The Commission also reviews evidence and examinations such as photographs, video recordings, satellite imagery, forensic and medical reports, reports by the United Nations and more. The Syrian government has yet to allow the Commission to undertake investigations inside the country.
5 - What did the International Commission of Inquiry on Syria document?
The Commission has concluded, in 2012, that gross human rights violations, violations of international humanitarian law, war crimes and crimes against humanity were committed in Syria by Government forces and affiliated militias, in particular murder and torture, unlawful killings, indiscriminate attacks against civilian populations and acts of sexual violence. The Commission noted that such violations were committed pursuant to a state policy, thus rejecting the idea that they were aleatory, or isolated instances.
The Commission also concluded that non-state armed groups committed war crimes including murder, extrajudicial killings and torture however with the caveat that non-state armed forces’ actions were not of the same gravity, frequency and scale as the one’s from Government forces.
In 2013, the Commission reported that “both pro- and anti- Government forces” had become increasingly violent and reckless towards human life, emphasizing the urgent need for a political settlement to end violence. The Commission noted that all parties to the conflict had committed violations of international human rights law, but the scale of the violations committed by Government forces and affiliated militias significantly exceeded those of anti-Government armed forces.
The 2013 report stated that Government forces and non-state armed groups had massacred civilians. The Commission revealed the occurrence of crimes against humanity across Syria during house searches, at checkpoints and at both official and unofficial detention centers; government forces and affiliated militias arbitrarily arrested individuals and committed various inhumane acts including murder, torture, rape and enforced disappearances. Incidents of children being raped, killed, tortured and actively involved in hostilities as fighters despite being under the age of 15 were also noted. The Commission revealed disturbing instances of governmental aerial attacks targeting hospitals, bakeries, and breadlines with instances of Government jets bombarding hundreds of civilians standing in bread lines.
In 2014, the Commission investigated Syria’s alleged use of chemical weapons and concluded that Sarin gas had been used on multiple occasions [9].
The most recent Commission of Inquiry report (A/HRC/25/65), of 12 February, said that absolute impunity pervades the Syrian conflict. Government forces and pro-government militia continued to conduct widespread attacks on civilians, systematically committing murder, torture, rape and enforced disappearances and besieging civilian areas starving them into submission, all amounting to crimes against humanity. Non-state armed groups committed war crimes, including murder, torture, hostage-taking, violations of international humanitarian law, rape, and recruitment and use of children.
The Commission has urged for the referral of the Syria situation to the International Criminal Court (ICC) pressing for accountability saying that the responsibility for holding the perpetrators of war crimes and crimes against humanity accountable lies with the Government of the Syrian Arab Republic, the UN Security Council and other influential states. The Commission stated a need for urgent action to ensure that there is justice for crimes committed [10].
6 - Could the ICC have jurisdiction over the crimes committed in Syria?
The ICC has jurisdiction over genocide, war crimes and crimes against humanity committed on the territory of state parties or by their nationals.
In principle a State Party may refer a situation to the Office of the Prosecutor of the ICC when crimes have been committed on its territory or by its nationals.
Syria is not a State Party to the Statute, however, the Rome Statute allows, according to its Article 12(3), for non States Parties to lodge a declaration accepting the jurisdiction of the Court, with respect to those crimes.
The Rome Statute, under its Article 13(b), also allows the UN Security Council (UNSC) to refer a situation in which the crimes are perceived to constitute a threat against peace under Chapter 7 of the UN Charter, no matter where they were committed. That means that the UNSC can refer to the ICC crimes committed in Non-States Parties, even if those States do not agree with the referral. However, as all decisions within the UNSC, the five permanent members (China, France, Russia, the United Kingdom and the United States of America) can use their veto power.
Under the Rome Statute, as indicated in Article 6, genocide is constituted when crimes are committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group. Article 7 defines crimes against humanity as crimes committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Article 8 defines war crimes as crimes committed as part of a plan or policy or as part of a large-scale commission of such crimes in the context of an armed conflict.
In the case of Syria, a Non-State Party, the ICC could only obtain jurisdiction over the crimes committed through a referral from the UN Security Council or through an Article 12(3) Declaration which, at the moment, remains unlikely.
7 - What would the ICC do different from the previous reports and commissions?
The ICC is an international criminal jurisdiction, i.e, it has investigators and prosecutors who present cases before the Court’s judges, against individuals for their alleged responsibility in the commission of genocide, crimes against humanity and/or war crimes. The judges, who are independent and coming from all regions of the world, analyse the evidence and in light of the Rome Statute, with due respect to fair trial rights, establish whether the alleged perpetrator is responsible “beyond reasonable doubt”. As the ICC is a court of law, the person accused has the right to be defended by a lawyer of his/her choosing. Victims of the crimes brought to court have also a right to participate in the proceedings.
8 - Why didn’t the UN Security Council refer the situation to the ICC?
The UN Security Council’s five permanent members (United States, United Kingdom, France, China, Russia) have veto power over any resolution. The Security Council has had the opportunity to approve resolutions that would refer Syria to the ICC, but repeatedly such actions have been shut down by Russia and China. A statement from the Russian Foreign Ministry addressed the attempts to refer Syria to the ICC saying, “We believe this initiative is ill-timed and counterproductive to resolving the main task at this moment: an immediate end to the bloodshed in Syria [11].”
9 - What has been done by UNSC members to refer the situation to the ICC Prosecutor? What are the countries in favor of or against a referral?
A significant portion of Security Council members have publicly expressed their support for referring Syria to the ICC. France has been the most vocal -especially given the attention paid to the Caesar Report. The United Kingdom, Luxembourg, Argentina, Australia, South Korea, Chile, Lithuania and Nigeria have also publicly spoken out in support of the referral [12]. France and the UK were both signatories of a communiqué in January 2013 asking the UN Security Council to refer the situation in Syria to the ICC. The letter was an initiative led by Switzerland and supported by France from the outset and signed by more than 50 other countries [13] .
Russia and China have repeatedly stood in the way of further action and a referral of the Syria situation to the ICC. They have vetoed resolutions on Syria several times and have faced international criticism. FIDH has strongly condemned Russia and China’s decisions to veto UN Security Council resolutions, saying that its failure to reach agreement is fuelling the violence in Syria, and allowing for the death and suffering of innocent civilians [14].”
10 - What would be the consequences of an ICC referral?
A referral by the UNSC to the ICC would allow the Court to exercise its jurisdictions over the situation, within the framework defined of a referral. Nevertheless, the situation would follow the same procedure as any other.
First, since the ICC is not bound by any finding of the International Commission or any other report, the Office of the Prosecutor would have to decide to open a preliminary examination to establish, independently, whether there is a sufficient basis to believe that crimes under the jurisdiction of the ICC have been committed, if there are genuine national proceedings and whether the crimes meet the gravity threshold establish for the Court to act. If so, the OTP may open an investigation, and from the evidence gathered, present cases against individuals to the Judges. The proceedings at the ICC follow the Rules of Procedure and Evidence. The Judges are the ones to decide to convict or acquit the accused, in light of the Statute and the evidence presented.
11 - Can the ICC address the impunity in Syria?
The ICC is highly limited in addressing impunity in Syria without a referral from the UN Security Council allowing an investigation to begin. If given jurisdiction over the situation in Syria, the ICC can serve as an important tool in addressing impunity through holding those responsible for the most serious crimes accountable and preventing further crimes.
However, the ICC cannot and is not meant to deal with all crimes committed in a country, or to judge all those responsible for the crimes. In each country, the ICC deals with a limited number of cases that the national justice system does not have the capacity or the willingness to deal with. It is important, however, as a step towards justice that needs to be complemented with other efforts to deal with impunity.
12 - Could an ad hoc international criminal tribunal or a specialised mixed tribunal be established?
The establishment of an ad hoc international criminal tribunal or a specialised mixed or hybrid tribunal was mentioned in current debates as a possible way to address the lack of accountability for the international crimes that are being committed in Syria.
An ad hoc international criminal tribunal could be established through a UN Security Council resolution invoking Chapter VII of the UN Charter, as it was the case for the International Criminal Tribunal for former Yougoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994. This solution would imply the creation of a whole new tribunal, with elected international Judges, Prosecutors and Registrar, the recruitment of specialised international staff, the elaboration and adoption of founding texts (i.e. Statute, Rules of Procedure and Evidence), and would thus need an important amount of time and financial resources. The international community resorted to this ad hoc solution mainly before the creation of the ICC, a permanent mechanism to hold those who bear the greatest responsibility for the gravest international crimes accountable.
A specialised mixed or hybrid tribunal, implying the application of international as well as domestic law by specialised chambers within national courts and a mixture of national and international staff members at all levels (judges, prosecutors, registrar etc.), could be established through a treaty arrangement between different stakeholders, involving the authorities of the State of commission of the crimes, as it was done with Sierra Leone, Cambodia and Lebanon. This solution would need a strong political will from the State where the crimes were and/or are being committed as well as important ressources and support from relevant stakeholders.
In February 2013, the UN Commission of Inquiry on Syria concluded that an ad hoc international criminal tribunal or a specialised mixed tribunal is not an appropriate mechanism for addressing impunity in Syria. Due to a variety of inconveniences and challenges, ad hoc international tribunals or specialised mixed tribunals require more time and money than if a permanent institution such as the ICC handled the situation in Syria. In lieu of such challenges, the Commission advised against the establishment of an ad hoc or specialised mixed tribunal and concluded that the ICC is the most appropriate judicial mechanism [15].
Given the ongoing perpetration of international crimes by parties to the conflict, the lack of political will of the Bachar Al Assad regime, the lack of capacity and independence of the national justice system, the lack of resources and the current urgency to engage in serious measures to fight against the prevailing impunity for the international crimes committed in Syria and to contribute to deter future crimes, FIDH supports the referral of the situation to the ICC.
FIDH believes that although the creation of ad hoc or specialized mixed tribunal for Syria is being considered in the framework of political discussions, the ICC is the most relevant body including in terms of effectiveness and rapidity. Should the option of ad hoc or specialized mixed tribunal prevail in the political negotiations, FIDH urges all parties involved not to compromise international criminal law standards and guarantees.
13 - Can other States prosecute alleged perpetrators of crimes in Syria? According to which criteria?
States can prosecute alleged perpetrators of international crimes – genocide, crimes against humanity, war crimes, torture, enforced disappearance – committed in another country in application of extra-territorial jurisdiction. Universal or extra-territorial jurisdiction allows the courts of any country anywhere in the world to try perpetrators of international crimes, regardless of the location of the crimes and irrespective of the nationality of the perpetrator or the victim. All States have a duty and at times an obligation (especially for cases of torture and war crimes) to hold perpetrators of these crimes, that affect the international community as a whole. Each country has however a certain legislative framework and legal criteria to respect to be able to trigger the jurisdiction of its courts and apply universal or extra-territorial jurisdiction. The minimum requirement to apply universal or extra-territorial jurisdiction is generally that the alleged perpetrator is present on the territory of the State wanting to initiate investigations and prosecutions.
In any case, the recourse to universal or extra-territorial jurisdiction is quite limited as it could only allow the prosecution of a limited number of alleged perpetrators and cases due to the limits of its jurisdiction and of its capacity.