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Grave times ahead: Accountability options for Syria

Image credit: Freedom House (Flickr: Creative Commons)

Over the past week, developments in Aleppo have plunged Syria back under the international lens. Even after more than five years of devastating conflict, a peaceful resolution seems far from reality for the embattled nation. There is still no mechanism for justice in Syria, which is paving the way for the perpetration of mass atrocities, a burgeoning humanitarian crisis and rampant impunity. Whilst political fatigue and discord in the UN Security Council have undermined recent accountability efforts, it's critical that the international community renews its efforts to pursue justice for the crimes committed.

Initially, a UN Security Council referral of the Syrian case to the International Criminal Court (ICC) seemed the most practical and effective method to address impunity. The ICC has a mandate to investigate war crimes, crimes against humanity and genocide – all of which are clearly occurring in Syria. Whilst Syria is not a member of the ICC, the UN Security Council has the unique power to refer cases to the ICC when they pertain to a non-member state. However, the current paralysis in the Security Council, largely due to Russia’s consistent exercise of its veto power, has rendered this institution futile in accountability efforts. The inability of this UN organ to responsibly deal with the Syrian war has attracted international criticism and undermined the legitimacy of the ICC as it becomes a political tool in the crisis.

Whilst an ICC referral has failed, however, it appears that recent political pressure has had some positive impact on achieving agreement in the Security Council. On Monday 19 December, the Security Council unanimously passed a resolution relating to monitoring evacuations from the formerly rebel-held eastern Aleppo, currently facing one of the worst humanitarian disasters of our century. Even if this resolution goes some way in assisting civilians, it does nothing for the issue of accountability.

Therefore, there are some possibilities to overcome the inaction of the Security Council. Political pressure is evidently an effective means, otherwise the UN General Assembly could intervene. The General Assembly can either hold an emergency session on Syria, or possibly revise the veto power in the context of mass atrocities, which has previously been considered but has not yet been successful.

Another legal avenue available for pursuing justice in the Syrian conflict is a hybrid tribunal or court. A hybrid legal institution incorporates principles of domestic and international law, with examples including the Special Court of Sierra Leone. These mechanisms are a flexible, effective and more legitimate alternative to dealing with nation-specific post-conflict justice.

The prospect of such a court being established whilst the conflict continues does seem unlikely, however. Due to the war-torn status of Syria, another regional country would be required to take on the logistical and fiscal burden of establishing such a court. This would require the consent of that nation and the Syrian government. Given the involvement of the Syrian government and the region’s general implication in the war, any such court would not be considered impartial. As such, the establishment of a Syrian tribunal at this point in the crisis would be considered illegitimate, biased and consequently ineffective.

National justice systems may play a critical role in achieving some level of accountability. The legal concept of extraterritorial jurisdiction provides scope for national courts to prosecute individuals for crimes committed abroad, including war crimes, torture and murder. Usually, there must be some nexus between the prosecuting country, the crime committed and the individual. Nevertheless, under the universality principle, Sweden recently arrested a Syrian asylum seeker who fled the war after the commission of grave crimes in Syria.

This avenue is, however, of limited reach. National courts are usually only able to target low-level perpetrators who are no longer based in Syria. Nevertheless, the Australian government is currently seeking the extradition of Turkey-based Neil Prakash, an Australian citizen who has been involved in the war and is a leading ISIS recruiter. Whilst these efforts may seem narrow in scope, they nonetheless assist in piercing the veil of impunity.

In the absence of any current investigation or court able to hear cases from the Syrian conflict, the gathering of evidence is critical. The abundance of information flooding out of Syria – revealing the horrific scale of violence – suggests that there is likely to be a plethora of cases arising in a post-conflict era. Various NGOs are currently undertaking their own investigations to expose the horrors of the war and document the crimes being committed. However, efforts should be coordinated to ensure that the most comprehensive catalogue of data is collected and the minimal risk to witnesses by reducing their exposure.

Whilst total justice will not be achieved until long after the debris of conflict finally settles, there is scope for the international community to commence the accountability process and deliver limited justice for some of the crimes committed. Nations must therefore renew their efforts on Syria and consider alternative strategies for accountability whilst the Security Council remains in relative political deadlock.

Sarah Barrie is studying a combined Bachelor of Laws (Honours) and Middle Eastern and Central Asian Studies at the Australian National University

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