Progress on Justice Mechanism a Bright Spot on Syrian Horizon

Carla del Ponte, who resigned from the UN Commission of Inquiry on Syria last week, addressed a conference on the crisis. Geneva, Switzerland, August 6, 2017. (Salvatore Di Nolfi/Keystone/Associated Press)

Last week, war crimes expert Carla Del Ponte resigned from her position as head of the United Nations’ International Commission of Inquiry for Syria, declaring that “there is no justice for Syria” and lamenting the “lack of political backing” for the commission’s work. While those trends would appear to be undisputed at present, the resignation comes as cautious progress is being made on a mechanism hailed as potentially securing long-term accountability in Syria.

The appointment last month of Judge Catherine Marchi-Uhel as head of the International Impartial and Independent Mechanism (IIIM) for Syria marked the official beginning of an innovative effort to combat impunity in the country. The IIIM was voted into existence in December 2016, through a UN General Assembly resolution passed by 105 member states. It is mandated to prepare criminal files for possible future proceedings in national, regional, or international courts and tribunals.

While not a prosecutorial body in itself, the IIIM represented the response of those in the international community who could not accept the inaction on Syria imposed by the veto-wielding powers of the UN Security Council.

Being the first such mechanism to be created by any UN organ in any context, the IIIM raises many questions, notably regarding the use in criminal proceedings of evidence collected by third party investigators. There are also queries over where the crimes it investigates might be prosecuted; no international court or tribunal currently has the power to prosecute genocide, war crimes, and/or crimes against humanity committed in Syria.

At this stage, criminal files prepared by the IIIM could therefore only be used in national courts. As some commentators note, these national courts currently are, and will likely continue to, prosecute mainly low-level perpetrators. It is easier to take these people into custody as they find their way into other countries through asylum systems. Such cases are also generally more straightforward, in the sense that it is easier to tie the accused directly to the crime. According to former US ambassador-at-large for war crimes Stephen Rapp, however, the hope is that the IIIM will ultimately help establish more high-profile and complicated criminal cases.

There are very real obstacles to the IIIM’s proper functioning; from legal considerations of its practicality and role within national and international legal systems to the ever-present political dynamics surrounding the Syrian conflict. Notably, and as stressed by Del Ponte when she resigned, the fact that permanent Security Council members such as Russia are major parties to the conflict imposes a gridlock that makes it impossible to refer cases to the International Criminal Court.

Still, the fact that the IIIM even exists—and has now seen the appointment of Marchi-Uhel as head—has given cause for optimism on accountability for the grave crimes that have been reported in Syria. From the use of chemical and other indiscriminate weapons, to the direct targeting of schools and hospitals, to the forcible conscription of children, all parties to the conflict—both state and non-state—are suspected of committing violations of international law for which the Syrian people and many in the international community want to see justice.

The UN is currently looking to fund the mechanism’s annual operating needs, estimated at $13 million, through voluntary state contributions. This is proving to be a challenge, however, with some powerful states, the United States—permanent member of the Security Council and party to the conflict in Syria—among them, holding back commitments. In their absence, small states such as the Netherlands, Luxembourg, and Liechtenstein have been pledging contributions and may help to provide the broad funding base that will be necessary for the IIIM to function independently. Funding frustrations have nonetheless contributed to delays in the intended timing of operationalization: The IIIM’s terms of reference foresaw that this would be completed in the second half of 2017, which appears far from achievable at present.

More positively, lags in establishing a state funding base for the new mechanism have led to innovative civil society action to attempt to bridge the gap. In June 2017, a group of Syrian and international human rights groups gathered to launch a crowdfunding campaign in support. So far, the campaign has raised approximately 26% of its $995,000 goal, placing it among the top 10 contributors to the fund.

Del Ponte may have resigned in frustration at Security Council inaction on Syria, but the timing of her resignation at least shines a light on the issue of impunity just as the IIIM starts its substantive work.

According to Andrew Clapham, professor of international law at Geneva’s Graduate Institute, the establishment of the IIIM and its role in preparing and analyzing evidence “builds the momentum for prosecutions at the national level which otherwise would be less feasible, if not impossible.” The Commission of Inquiry has been investigating violations of international law for the past six years, and, along with other actors, amassing important amounts of evidence. However, it reports on all violations, including some that may not rise to the level of international crimes, and it uses a standard of proof that is lower than the one used in criminal proceedings. The IIIM has been mandated to coordinate and cooperate with the commission, which means that it will collect the evidence gathered by it, consolidate this, and prepare it for use in a court or tribunal. The IIIM and the commission’s roles are therefore complementary, and as the IIIM now sets to work, it is hoped that it will create the political space for national courts to lead the way with accountability and for the international community to, further down the line, prosecute these most serious of crimes in an international or hybrid criminal court.

If the status quo is maintained, war crimes in Syria are likely to continue on a daily basis, and their perpetrators escape accountability for their crimes. However, despite the forces that are pushing against accountability, Alex Whiting of Harvard Law School aptly writes that the establishment of the IIIM—and we can add to that the efforts of civil society to contribute to its funding—is a “testament to the human determination and creativity that has kept the international criminal justice project moving forward.”

Alice Debarre is a Policy Analyst in the Humanitarian Affairs program of the International Peace Institute.

Correction: an earlier version of this article misstated the amount of money so far raised by the crowdfunding effort toward the IIIM.