Is criminal prosecution the only mean to ensure justice?

Syrian kids displaced Syrian kids displaced © Bulent Kilic/AFP/Getty Images

This is a presentation of the briefing paper "Justice for Syrian Victims beyond Trials", by ICTJ, pubblished in February 2018

“Syrian organizations and the international community should work together to develop innovative uses for existing and ongoing documentation records, including, but not limited to, criminal prosecution” [ICTJ, Justice for Syrian Victims beyond Trials, 2018].

 Since the beginning of the Syrian war, different institutions and organizations have been collecting information and evidence of systematic violations of international human rights and humanitarian law, committed in Syria by both sides of the conflict. The aim was to document abuses, identify perpetrators and (one day) hold them to account.

Yet, over the years, recourse to international justice mechanisms has been considered and tried in different occasions. Among these international bodies, we should mention the Independent International Commission of Inquiry on the Syrian Arab Republic, which was established by the UN Human Rights Council in 2011, with the mandate to investigate all alleged violations of international human rights law since March 2011 (to read more on this topic, please visit: https://www.losservatorio.org/en/reports/item/1314-report-of-the-independent-international-commission-of-inquiry-on-the-syrian-arab-republic). Another contemplated institution is the International Criminal Court (ICC). In particular, the option of referring Syria to the ICC has been discussed many times, as countries has felt frustration and impotence in the face of ongoing violations and the international community’s general lack of response. In this regard, when crimes under the jurisdiction of the court allegedly take place in a country that is not party to the Rome Statute, Article 13(b) of the same Statute grants the UN Security Council, acting under Chapter VII of the UN Charter, the power to refer the situation to the ICC. Notwithstanding this power, to date, no situation in Syria has been referred to the ICC, and that because, on 22nd May 2014, China and Russia vetoed it. Nothing surprising, given the Russia’s unwavering support for the current Syrian government.

Another avenue for pursuing justice trough criminal prosecution has been found in the principle of universal jurisdiction, according to which, the national courts of any state can try individuals accused of having committed serious crimes of international concern, regardless of the nationality of the alleged perpetrators or victims, and regardless of where the crimes were executed.

Last but not least, it is also worth citing the “International Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in Syria since March 2011” (IIIM). This mechanism, in close cooperation with the Independent International Commission of Inquiry on Syria, is mandated to collect, consolidate, preserve, and analyze evidence pertaining to violations of human rights and humanitarian law. It is also intended to prepare files to facilitate and accelerate fair and independent criminal proceedings in national, regional, or international courts or tribunals with jurisdiction over these crimes, in accordance with international law.

However, notwithstanding the above, the possibility of setting up criminal proceedings against alleged perpetrators has slowly faded. As a result, information and testimonies have just piled up unused in databases and files. On this point, a question automatically rises up: are there any other justice mechanisms available that could be implemented by using this data?

Although some of the information gathered may not ever be used for criminal prosecutions (because of its lower quality or level of evidence), the International Center for Transitional Justice (ICTJ), in its 2018 Report, explains how developing new and innovative uses for the material collected is key to addressing injustices. Such information, for instance, can still be used today to achieve objectives related to acknowledgment, victims’ right to truth and memorialization. Furthermore, it may also be useful to justice-related processes in the future, particularly issues and claims related to housing, land, and property; civil status; and the missing and forcibly disappeared.

 

To read more, please visit:

https://www.ictj.org/sites/default/files/ICTJ-Briefing-Syria_Documentation-2018.pdf

 

Author: Federica Pira

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