Syria’s protracted crisis has been further complicated by the deeper involvement of United States and Israeli forces this week. Despite parallel peace talks being pursued in Geneva and Astana, the conflict appears destined to go on for some time, with the likelihood of crimes being committed under international law also continuing. With the International Criminal Court (ICC) essentially powerless to investigate such offenses at present, could a new mechanism at least preserve the evidence of abuses for future justice processes?
In December last year, the United Nations General Assembly adopted a resolution to establish the International, Impartial and Independent Mechanism to assist and coordinate the prosecution of serious crimes in Syria. The need for such a mechanism seems clear, with the ICC prevented from intervening in the country, which is not a member state and hasn’t accepted its jurisdiction. Russia and China also vetoed a UN Security Council resolution in 2014 which would have given ICC prosecutors a mandate to investigate there. Proposals for other initiatives, such as the creation of a special tribunal similar to the ones that followed the genocide in Rwanda and the wars in the former Yugoslavia, have also failed to get off the ground.
Speaking at an event in support of the new mechanism earlier this month, Dutch Foreign Minister Bert Koenders suggested the current impasse wouldn’t be resolved any time soon. “A political solution still eludes Syria, and accountability is out of reach for now,” Koenders said.
While lacking a forum to try perpetrators, international lawyers and prosecutors have continued to gather evidence of war crimes, typically working through non-governmental organizations. The Syria Justice and Accountability Centre, for example, has developed a database of millions of official documents containing information smuggled out of Syria. The UN, too, has established the Commission of Inquiry for Syria, which is mandated to collect information on the crimes committed there. Estimates are that millions of documents and several terabytes of other evidence has already been saved. In 2013, a military police officer known as Caesar fled Syria with 28,000 photos reporting deaths in government custody.
The mechanism endorsed late last year is intended to act as a coordinating body for preserving and analyzing, in a consistent manner, the information gathered by these various institutions. It is also permitted to create case files that could be later forwarded to domestic courts or any international tribunal established on Syria. According to the UN, the mechanism has a “quasi-prosecutorial function.” It is further evidence of an emerging strategy in international criminal law which recognizes that the more time that passes waiting for a court to be established, the more difficult it becomes to find reliable evidence and establish the facts of those crimes committed.
The preservation of evidence could facilitate future prosecutions in countries where the ICC does not have jurisdiction and the international community is yet to agree on how, when, and where criminal prosecutions can begin. A deteriorating global political consensus, most evident within the UN Security Council, has made progress on justice particularly fraught with difficulty. Initiatives to activate the ICC’s powers in response to events in Syria, as well as North Korea, have been repeatedly voted down in the Council or not even put to a vote. The establishment of special courts for South Sudan and the Central African Republic is also making little progress (an initiative similar to the Syrian reporting mechanism has already been proposed for South Sudan).
Despite its apparent need, it remains unclear whether this new strategy and supporting mechanisms will be useful in practice. Evidence of atrocities is not enough for international lawyers to mount effective cases. Since the ICC or any other tribunal would prosecute only high-level officials, its prosecutors need so-called “linkage evidence.” They must prove that politicians, military commanders, or other officials not present when crimes were committed were involved by ordering, paying for, or otherwise supporting them. Such evidence can be in the form of bank statements, records of phone calls, or details of command structures. These pieces of evidence are not necessarily among the information being smuggled out of Syria.
A second major issue concerns the use of evidence provided by third parties. The ICC and other tribunals have discrete standards and procedures for the gathering of evidence by their own officials. While there is no provision in the laws and rules of the ICC prohibiting the use of externally sourced information, this has caused trouble in the past. In its first case against the Congolese militia leader Thomas Lubanga, the ICC relied on evidence provided by the UN peacekeeping mission in the Congo, the UN human rights mission there, and various NGOs—during the pre-trial phase, 55% of the prosecutors’ submitted evidence apparently came from third parties. When the prosecutors cited confidentiality concerns in not revealing the origins of such evidence, the defense objected on the grounds that the material’s reliability was unproven. After the case almost collapsed, prosecutors agreed to reveal their sources, opening up fear of recrimination for potential future evidence providers in other cases. The ICC Office of the Prosecutor has since become very cautious concerning the use of third party evidence.
Still, experts such as Stephen Rapp, the former United States ambassador-at-large for global criminal justice, believe that the new mechanism being developed will ultimately make the information gathered by different organizations in Syria more useful, through the “collaborative development of standards.” Rapp is confident that prosecutions over international crimes committed in the conflict will eventually be forthcoming. As he told the International Justice Tribune, “When you build the evidence it is hard for states to ignore.”