Tuesday, 3 September 2019

SYRIAN ARMED CONFLICT: ANALYSIS OF THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE PROSECUTION OF VIOLATIONS OCCURRING IN SYRIA

By Larry C. Nkwor

Introduction
War crimes have been a consistent feature of the Syrian conflict since its inception. In addition to war crimes, the Syrian people have experienced other crimes under international criminal law, including crimes against humanity, summary execution, terrorism, and genocide against ethno-religious minorities. Thousands of Syrians have disappeared without a trace, many of them victims of enforced disappearances. The emergence of the Islamic state of Iraq and Syria (ISIS) on the scene introduced a new set of ruthless perpetrators who have brought the violence to an even more alarming level of brutality. ISIS is also known as Levant/Daesh. It is a militant organization that has committed war crimes, crimes against humanity and crimes against foreign citizens in its pursuit of creating a caliphate. In the lands controlled by ISIS, the agents of ISIS have brutally murdered Christians and other religious minorities who have refused to convert to ISIS’s belief. ISIS has brutally raped and trafficked hundreds of Iraqi and Syrian women and children and has targeted Syrian minorities because of the victims’ religious affiliations or ethnic backgrounds. These extreme levels of violence generated a massive refugee crises in the region and beyond. 

Background 

The Syrian civil war is an ongoing multi-sided armed conflict in Syria fought primarily between the government of President Bashar al Assad, along with its allies, and various forces opposing the government.

The unrest in Syria grew out of discontent with the Assad government and escalated to an armed conflict after protests calling for his removal were violently suppressed. The main belligerents in the armed conflict includes; the Syrian Arab Republic, the Syrian opposition and the ISIS, with a number of countries in the region and beyond either directly involved, or rendering support to one or another faction.

Pro-democracy protests erupted in March 2011 in the southern city of Deraa after the arrest and torture of some teenagers who painted revolutionary slogans on a school wall. After security forces opened fire on demonstrators, killing several, more took to the streets. The unrest triggered nationwide protests demanding President Assad's resignation. The government's use of force to crush the dissent merely hardened the protesters' resolve.

By July 2011, hundreds of thousands were taking to the streets across the country. Opposition supporters eventually began to take up arms, first to defend themselves and later to expel security forces from their local areas. Violence escalated and the country descended into civil war as rebel brigades were formed to battle government forces for control of cities, towns and the countryside. Fighting reached the capital Damascus and second city of Aleppo in 2012. By June 2013, the United Nations said 90,000 people had been killed in the conflict. By August 2015, that figure had climbed to 250,000, according to activists and the UN. The conflict is now more than just a battle between those for or against Mr. Assad. The conflict has drawn in regional and world powers. The rise of the jihadist group has added a further dimension to the conflict.

Under the auspices of the U.N. Human Rights Council, the Independent International Commission of Inquiry on the Syrian Arab Republic has been working to investigate all alleged violations of international human rights law since March 2011 in the Syrian Arab Republic, to establish the facts and circumstances that may amount to such violations and of the crimes perpetrated and, where possible, to identify those responsible with a view to ensuring that perpetrators of violations, including those that may constitute crimes against humanity, are held accountable. Since its inception in 2011, the Independent International Commission of Inquiry on the Syrian Arab Republic has issued multiple broad-spectrum and thematic reports, tracing the dramatic deterioration of the situation in Syria.

There have been serious violations of IHL and IHRL in the Syrian armed conflict by parties to the conflict. The most serious crimes of concern to the international community as whole namely; war crimes, crimes against humanity and genocide have all featured in the non-international armed conflict in Syria. The emergence of ISIS has also increased the brutality in this conflict. This group has committed both war crimes, crimes against humanity and human rights violations. There is also a claim of genocide being committed by ISIS. On February 3, 2016, the European Union recognized the persecution of Christians by ISIS as genocide, the vote was unanimous, and the United States followed suit on March 15, 2016 declaring these actions as genocide. ISIS has showed no respect for the laws of war.

 The horror of Syria war is in the millions of pictures that are too gruesome to circulate- charred limbs stacked outside hospital wards, bloated bodies rotting in sniper alleys, a toddler plucked from the rubble without a head. The Syrian war has become a conflict in which war crimes carry no consequences, for the perpetrators, present or seemingly in the future.

There might be a problem in holding perpetrators in Syria accountable for international crimes and prosecuting them in the international criminal court because Syria is not a party to the Rome statute. The ICC’s prosecutor Fatou Bensouda said in 2015, that while ISIS has committed “crimes of unspeakable cruelty”, her jurisdiction is too narrow to launch a prosecution. Syria where the crimes have taken place is not a party to the Rome statute.

  The International Legal Framework Applicable to Syria Armed Conflict 
The existence of an armed conflict is necessary for the prosecution of war crimes under international humanitarian law. However is not required for the prosecution of crimes against humanity or genocide. Additional protocol II 1977 of the Geneva conventions is said to apply in an armed conflict which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations. International law imposes limits on the behavior of the actors in the civil war in Syria. Even without specific treaty obligations imposed upon it, the Syrian government and non-state actors are bound to respect customary international law. In terms of their treaty obligations, it is useful to examine whether Syria has ratified specific instruments imposing concrete obligations. Syria has ratified the Geneva Conventions of 1949 and has also ratified the Genocide Convention of 1948. Syria has not ratified Additional protocol II which regulates non-international armed conflict. Syria signed the Rome Statute for the ICC in 2000, but never ratified it. The Syrian government claims that its opposition to the Court was the omission from the Statute of the crime of aggression. It is perhaps surprising to observe that the Syrian Arab Republic is a party to many international human rights treaties, including the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Elimination of all forms of Racial Discrimination, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. Sadly, it is clear that most of the human rights treaties ratified by Syria, in particular, have not been and are not being respected by the Syrian government, observing the human rights violations occasioned by the Syria armed conflict.

 1. The Geneva Conventions 
1949 The Geneva Conventions and their additional protocols are at the core of IHL, the body of international law that regulates the conduct of armed conflict and seeks to limit its effects. The Geneva Conventions entered into force on 21 October 1950. The Geneva conventions comprise of four treaties, and three additional protocols. The 1949 Geneva Conventions protect certain vulnerable classes of person such as civilians and prisoners of war but they also apply for the most part to international armed conflicts. Only common Article 3 of those treaties, which does not designate its list of prohibitions as crimes per se, governs non-international armed conflicts. Common Article 3 provides that In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
b) Taking of hostages;
c) Outrages upon personal dignity, in particular humiliating and degrading treatment;
d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

 2. The Convention on the Prevention and punishment of the crime of Genocide 1948
The Convention on Genocide was among the first United Nations conventions addressing humanitarian issues. It was adopted in 1948 in response to the atrocities committed during the World War II. The Convention entered into force on 12 January 1961. Syria is a party to the Genocide Convention. The Genocide Convention is now regarded as jus cogens. The Genocide Convention strictly prohibits genocide. Genocide is a crime under international law regardless of whether committed in time of peace or in time of war. Thus, irrespective of the context in which it occurs (for example peace time, internal conflict, international armed conflict or whatever the general overall situation) genocide is a punishable international crime. In Syria, members of the Islamic state of Iraq and Syria have committed genocide against the Yazidis and other religious minorities thereby violating the principles of the genocide Convention. Genocide is intentional action to destroy a specific group in whole or in part. It is a serious crime of concern to the international community and the crime has a whole convention to itself. Under the Article 2 Genocide Convention, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
 Article 6 of the Rome statute which also defines genocide is a replica of Article 2 of the Genocide Convention. Under the Genocide Convention, the following acts shall be punishable:
a) Genocide;
b) Conspiracy to commit genocide;
c) Direct and public incitement to commit genocide;
d) Attempt to commit genocide; e) Complicity in genocide.

3. Customary International Law
Customary international law now penalizes many breaches of IHL. Customary international law is binding on all states. Many violations of the terms of common Article 3 of the Geneva Conventions and Additional Protocol II now give rise to individual criminal responsibility as a matter of customary international law across the conflict spectrum (both in international armed conflict and non-international armed conflict).

The foundational IHL principle of distinction requires all parties to a conflict to distinguish between lawful and unlawful targets. The law that governs the direct targeting or mistreatment of civilians, civilian objects, and other protected persons and things is relatively straightforward and applies across the conflict spectrum. These prohibitions would enable the prosecution of those responsible for deliberate, indiscriminate, and disproportionate attacks on civilians. Deliberate attacks are intentional attacks on civilians and civilian objects. Indiscriminate attacks involves attacks that are not directed at a specific military objective or that involve a method or means of warfare that cannot be directed at a military objective or whose effects cannot be limited. The prohibition against area bombardment, applicable under customary IHL in international armed conflicts and internal armed conflicts, is a distinct subset of indiscriminate attack. Disproportionate attacks are those that generate incidental loss of civilian life and damage to civilian objects that is excessive in relation to the concrete and direct military advantage anticipated.

In the Syrian armed conflict, the principle of distinction have been violated and disregarded. Civilians and civilian objects have been targeted and attacked. Customary IHL provides that the parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians. Customary IHL provides that acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. Customary IHL provides that the parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects. Indiscriminate attacks are prohibited. Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited. The aforementioned rules are applicable to both international armed conflict and non-international armed conflict. Customary IHL treats violations of these rules as war crimes. In Prosecutor v. Milošević the ICTY found Dragomir Milošević guilty of “acts or threats of violence the primary purpose of which is to spread terror among the civilian population” as prohibited by the laws and customs of war. Milošević was also charged with war crime of committing an unlawful attack against civilians.

Unconventional weapons have been used by the warring parties in Syria. IHL is premised on the idea that the right to choose means and methods of warfare is not unlimited. The use of weapons and other methods of warfare that cannot adhere to the principle of distinction or that are of a nature to cause superfluous injury or unnecessary suffering is prohibited. The ICRC includes the use of prohibited weapons as a Customary IHL war crime in both international armed conflicts and internal armed conflicts. The use of cluster munitions and barrel bombs in Syria can be prosecuted under general rules governing direct, indiscriminate, or disproportionate attacks. Cluster munitions are incapable of distinguishing between civilians and combatants, or between civilian objects and military objectives. The ICTY in Prosecutor v Martić held that the defendant’s use of cluster munitions in a “densely populated” area of Zagreb was presumptively unlawful under general IHL principles, notwithstanding that there were military targets in the general vicinity of the attacks. The attack was also deemed a crime against humanity.

Customary IHL contains only a qualified ban on incendiary weapons in all conflicts. Rule 84 of customary IHL provides “If incendiary weapons are used, particular care must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects”. Rule 156 is silent as to the use of incendiary weapons. In any case, while their direct use against civilians, as seen in Syria, is conclusively banned by customary IHL, a court would have to determine whether their use there would constitute a war crime, either per se or as a type of indiscriminate attack.

Customary IHL bans the use of chemical weapons. Customary IHL provides that the use of chemical weapons is prohibited both in international and internal armed conflicts. The UN Security Council in its resolutions addressed to chemical weapon use in Syria, consistently calls for accountability, implying that the use of chemical weapons in a non-international armed conflict is a war crime.

There have been the use of starvation of civilians as a method of combat in Syria. IHL makes clear that the deliberate starvation of the civilian population as a tactic of war is prohibited and a prosecutable war crime. Customary IHL stipulates that the use of starvation of the civilian population as a method of warfare is prohibited regardless of the conflict classification. Although this prohibition is now well established, there have been very few prosecutions for the crime of deliberately starving the enemy civilian population. A notable exception is an in absentia national prosecution in Croatia against Momčilo Perišić and 18 others in Public Prosecutor v. M.P., the court convicted a number of defendants for crimes committed during the siege of the city of Zadar under the Croatian Penal Code, which lists starvation of civilians as a punishable war crime. Momčilo Perišić a colonel in the Yugoslav National Army who was also prosecuted by ICTY for other crimes. Humanitarian aid to civilians have been prevented and obstructed by parties to the armed conflict in Syria.

The impediment of the provision of aid to civilians violates modern IHL, which in addition to prohibiting starvation as a weapon of war requires parties to allow humanitarian access to areas in need. Customary IHL makes clear that in all armed conflicts, the parties must facilitate impartial humanitarian relief for civilians in need. Rule 156 of customary IHL treats starvation and impeding relief supplies as war crimes in all conflicts.

There have been sexual violence in the Syrian war. Sexual violence in armed conflict is prohibited. Rape and other forms of sexual violence cannot be used as a means and method of warfare Rape is a prosecutable war crime and crime against humanity at the International Criminal Court. Rape and other forms of sexual violence are prohibited regardless of the conflict classification. The perpetrators of these atrocities in Syria must be brought to justice.

In Syria, children’s rights are being violated on a massive scale. Rule 135 of customary IHL stipulates that children affected by armed conflict are entitled to special respect and protection. Children must not be recruited into armed forces or armed groups. Children must not be allowed to take part in hostilities. The actors in the Syrian war have disregarded these rules.

4. The Universal Declaration of Human Rights 1948 (UDHR)
The Universal Declaration of Human Rights is a milestone document in the history of human rights. The Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 as a common standard of achievements for all peoples and all nations. It sets out fundamental human rights to be protected. Many international lawyers and scholars believe that the Declaration forms part of customary international law. The Declaration has served as the foundation for two binding United Nations human rights covenant; ICCPR and ICESCR of which Syria is a party to. Warring parties have violated human right provisions; contained in the UDHR including; the right to life (Article 3), right to dignity of human person (Article 5), right to freedom of movement (Article 13), right to freedom from discrimination (Article 2) and so on.

  The Institutional Framework for the Prosecution of Violations Occurring in Syrian Armed Conflict 

1. The Role of the United Nations in Syrian Armed Conflict 
The United Nations (UN) has played a vital role in the Syrian civil war. Several UN bodies, including the Human Rights Council, the General Assembly, and the Security Council, have responded to the escalating crisis in Syria. In August 2011, the Human Rights Council created the Independent International Commission of Inquiry on the Syrian Arab Republic to monitor gross violations of Human Rights. This body, along with the general assembly, has consistently put forth resolutions condemning rights abuses and calling upon the Syrian Arab Republic to put an end to its attacks on civilians. The Security Council has also been engaged with the situation in Syria. On 14 April 2012, the Council authorized 30 unarmed observers to report on the implementation of the cease fire through its adoption of Resolution 2042 and on 21 April 2012, the UN Supervision mission in Syria was established under Resolution 2043. The UN supervision mission in Syria is a UN peacekeeping mission in Syria; established by the UN Security Council to create conditions that favours peace in Syria. Furthermore, the Security Council has offered its support to the Six point Plan spear headed by the UN Arab league Special Envoy Kofi Annan, which was initially considered the best opportunity to resolve the conflict. Despite these efforts, the violence in Syria continues to increase. The UN and the Security Council in particular, must move beyond a mere condemnation of the level of violence in Syria. In order to end suffering in Syria, the Security Council must consider new options:
1) The imposition of an arms embargo on Syria;
2) The implementation of targeted sanctions against Syrian leaders implicated in human rights violations;
3) The referral of the situation in Syria to the International Criminal Court.

For any of these actions to occur, Russia and China must stop obstructing the Security Council. The two powers have more than once vetoed Security Council resolutions that could have led to sanctions against Syria. Russia and China are both permanent members of the UN Security Council. France, the United Kingdom and the United States of America complete the five-nation lineup. Another 10 nations are non-permanent members, elected for two-year terms by the 193 states that are members of the UN’s general assembly. A resolution needs nine votes in favour and no vetoes by any of the five permanent members in order to be adopted.

In 2014, the Security Council demanded that all parties immediately cease all attacks against civilians, as well as the indiscriminate employment of weapons in populated areas, including shelling and aerial bombardment, such as the use of barrel bombs, and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering. This resolution also called for an end to impunity for all violations of IHL and tasked the Secretary-General to report on the implementation of this and related resolutions aimed at curbing abuses in Syria.

On 26 February 2016, the UN Security Council unanimously adopted a resolution calling for a cessation of hostilities and a grant for access to humanitarian workers to ease the suffering of the people in Syria. The resolution demanded that all parties to the agreement live up to it terms, and urged all member states to use their influence to ensure that parties to the conflict fulfil their commitments and create the conditions for a durable and lasting cease fire.

On 24 February 2018, the UN Security Council unanimously approved a resolution demanding a 30-day cease fire in Syria to allow aid deliveries and medical evacuations. By the terms of the resolution, the Security Council demanded that immediately after the start of the cessation of hostilities, all parties would allow safe, unimpeded and sustained access each week for humanitarian convoys of the UN and their implementing partners to all requested areas and populations.


2. The Independent International Commission of Inquiry on the Syrian Arab Republic (COI)
The Independent international commission of inquiry on the Syrian Arab Republic was established on 22 August 2011 by the UN Human Rights Council with a mandate to investigate all alleged violations of international human rights law since March 2011 in the Syrian Arab Republic. The commission was also tasked to establish the facts and circumstances that may amount to such violations and of the crimes perpetrated and, where possible, to identify those responsible with a view of ensuring that perpetrators of violations, including those that may constitute crime against humanity, are held accountable.

The COI has released several reports. One notable report was the one released by the COI on 13 August 2014. The COI reported that the conduct of the warring parties in the Syrian Arab Republic has caused civilians immeasurable suffering. The COI reported that Government forces continued to perpetrate massacres and conduct widespread attacks on civilians, systematically committing murder, torture, rape and enforced disappearance amounting to crimes against humanity. The COI further stated that Government forces have committed gross violations of human rights and the war crimes of murder, hostage-taking, torture, rape and sexual violence, recruiting and using children in hostilities and targeting civilians, Government forces disregarded the special protection accorded to hospitals and medical and humanitarian personnel. Indiscriminate and disproportionate aerial bombardment and shelling led to mass civilian casualties and spread terror. Government forces used chlorine gas, an illegal weapon. The COI also reported that Non-State armed groups committed massacres and war crimes, including murder, execution without due process, torture, hostage-taking, violations of international humanitarian law tantamount to enforced disappearance, rape and sexual violence, recruiting and using children in hostilities and attacking protected objects. Medical and religious personnel and journalists were targeted. Armed groups besieged and indiscriminately shelled civilian neighbourhoods, in some instances spreading terror among civilians through the use of car bombings in civilian areas. Members of Islamic state of Iraq and Syria committed torture, murder, acts tantamount to enforced disappearance, and forcible displacement as part of an attack on the civilian population in Aleppo and ArRaqqah governorates, amounting to crimes against humanity.

The COI in its report released on 16 June, 2016 stated that ISIS attacks on the Yazidis constitute genocide. According to the COI, ISIS forces have committed genocide and other war crimes in a continuing effort to exterminate the Yazidi religious minority in Syria.

The COI in its report on 27 February-24 March 2017, stated that civilians continue to bear the effects of brutal violence waged by warring parties in Syria. The COI reported that Government forces continue to attack civilian objects including hospitals, schools and water stations, Government forces continue to use prohibited weapons. The COI further reported that armed groups have launched numerous indiscriminate attacks and life under ISIS continues to be marked by executions and corporal punishments of civilians accused of violating the group’s ideology. The COI reported on 6 September 2017, that violence throughout the Syrian Arab Republic continues to be waged in violation of basic international humanitarian and human rights law principles, primarily affecting civilians countrywide. The COI further reported that Government forces continued the pattern of using chemical weapons against civilians in opposition-held areas.

The COI in its report released on 6 March 2018 stated that once again civilians have not only been the unintentional victims of violence, but have often been deliberately targeted through unlawful means and methods of warfare. Arbitrary arrests, enforced disappearances, torture, and sexual and gender-based violence have all been used against thousands of persons in detention. The COI further reported that vital civilian infrastructure has been decimated by repeated attacks on medical facilities, schools and markets and humanitarian aid has been instrumentalized as a weapon of war with siege warfare and denial of life-saving assistance used to compel civilian communities and parties to the conflict, alike, to surrender or starve.

The COI in its report released on 20 June, 2018 stated following five years of the longest running siege in modern history, between February and April pro-Government forces dramatically escalated their military campaign to recapture eastern Ghouta, decimating numerous homes, markets, and hospitals in bombardments amounting to the war crimes of launching indiscriminate attacks, and deliberately attacking protected objects. Through the widespread and systematic bombardments of civilian inhabited areas and objects, and the continued denial of food and medicine to besieged civilians during the period under review, pro-Government forces perpetrated the crime against humanity of inhumane acts causing serious mental and physical suffering.

The COI further reported that between February and April, besieged armed groups and terrorist organizations also relentlessly launched indiscriminate attacks against neighbouring Damascus city and nearby areas, amounting to war crimes which killed and maimed hundreds of Syrian civilians. Through the repeated, indiscriminate shelling of civilian inhabited areas, pro-Government forces, armed groups, and members of terrorist organizations alike committed the war crime of intending to spread terror among civilian populations living under the control of opposing sides.

The COI reported on 12 of September 2018 that battles waged by pro-government forces, armed and terrorist groups and other actors caused civilians to flee their homes in fear and desperation. Thousands of other civilians were forcibly displaced pursuant to “evacuation agreements” negotiated between warring parties. The plight of displaced persons — after seven years of war — now affects more than 5.5 million refugees who have fled the country, and more than 6.5 million internally displaced civilians subsisting inside the Syrian Arab Republic.

The COI reported on 28 February 2019 that extensive military gains made by pro-government forces throughout the first half of 2018, coupled with an agreement between Turkey and the Russian Federation to establish a demilitarized zone in the north-west, led to a significant decrease in armed conflict in the Syrian Arab Republic in the period from mid July 2018 to mid-January 2019. COI further reported however that hostilities remain ongoing and ttacks by pro-government forces in Idlib and western Aleppo Governorates, and those carried out by the Syrian Democratic Forces and the international coalition in Dayr al-Zawr Governorate, continue to cause scores of civilian casualties.

3. Domestic Courts in Syria
Domestic courts are the “backbone of a global criminal justice system”. Some countries allow their courts to hear international crimes as violations of international law, but other countries only allow their courts to hear such cases if the international law is also part of the country’s domestic law. If a domestic court is hearing an international criminal law case, then it draws on treaties, customary international law, secondary sources, and other general principles of law to decide the applicable law.

Syrian authorities are under an obligation to investigate and prosecute those suspected of having committed international crimes on Syrian territory. This obligation has its basis in both customary and conventional international law. Rule 158 of customary IHL provides that States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects.

There are several advantages to the pursuit of justice in the domestic courts of States on whose territory crimes are committed. These include the potential for greater impact within the local population and easy access to evidence. The pursuit of justice at the domestic level in Syria is, however, unlikely while the conflict continues. Even when the conflict ends, domestic courts can be expected to face difficulties overseeing the investigation and prosecution of the complex international crimes that have been committed in their own State.

The construction of domestic capacity in the aftermath of the conflict is essential because of the limited capacity of international criminal justice institutions and third States, to oversee the investigation and prosecution of a large number of cases. The strengthening of domestic criminal justice institutions is necessary to ensure that individuals who cannot be investigated and prosecuted elsewhere do not go unpunished

4. The International Criminal Court (ICC)
The ICC set up by states under the Rome statute, came into force on 1 July 2002. It represents a milestone in the international community’s fight to end impunity for war crimes, genocide, crimes against humanity and the crime of aggression. The court only prosecutes the most serious crimes that are of concern to the international community. Article 5 of the ICC statute provides that the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole, which are; the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.

Though states have the primary responsibility for prosecuting suspected war criminals, the ICC may act if the criteria required to establish jurisdiction are met – when domestic courts are unwilling or unable to do so. The ICC is intended to act as a “court of last resort,” which operates in the absence of genuine proceedings at the domestic level. Cases are admissible before the ICC if they are not being, and have not been, investigated or prosecuted by a State with jurisdiction, and if they are of sufficient gravity to justify further action by the Court. The ICC provides a possible route to justice in the absence of genuine proceedings at the domestic level.

In many respects the ICC is well placed to address the crimes allegedly committed in Syria. The Court is an established institution with the capacity to investigate and prosecute complex international crimes cases. It is less susceptible to bias than domestic courts and may be less likely to spark further conflict in the region. For this reason, it may provide an appropriate forum for proceedings against higher-level perpetrators that may be more politically charged and destabilizing.

The ICC may only exercise jurisdiction if the crime was committed in the territory of a state party or if the person that is accused of the crime is a national of a state party to the ICC. However, the ICC can exercise jurisdiction even though the crime was not committed in the territory of a state party or where the person that is accused of the crime is not a national of a state party to the ICC, if the situation in which one or more of such crimes appears to have been committed is referred to the ICC by the Security Council acting under Chapter VII of The UN charter. Article 13(b) of the Rome Statute provides that the Court may exercise its jurisdiction with respect to a crime referred to in Article 5 in accordance with the provisions of this Statute if a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the UN.

There are, however, a number of difficulties associated with the ICC as a forum for justice in Syria. One key issue is that of triggering the Court’s jurisdiction. Since Syria is not a State party to the Rome Statute, a referral from the UN Security Council, acting under Chapter VII of the U.N. Charter, is required to trigger the jurisdiction of the Court. Chapter VII deals with action with respect to threat to peace, breaches of peace and acts of aggression. The Security Council has already made two referrals to the ICC, in relation to the situation in Darfur, Sudan, in 2005 and that in Libya in 2011. Whilst some members of the Security Council, including the United Kingdom and France, have supported the referral of the situation in Syria to the ICC, the United States of America, China and Russia, each of which holds the power to veto action by the Security Council, have not supported such a move. Russia is reported to have described a referral as “ill-timed and counterproductive”. Therefore, a referral from the Security Council is, for the time being, unlikely.

It would, of course, be possible for a post-conflict government in Syria to ratify the Rome Statute and refer its own situation to the ICC or permit the Prosecutor to exercise jurisdiction on the basis of her proprio motu powers of investigation. The ICC has already received a number of referrals from States concerning crimes committed on their territory. These are the situations in Uganda, the Democratic Republic of the Congo, the Central African Republic, Mali and, more recently, the Union of the Comoros. Self-referrals have been criticized as an abdication of responsibility to investigate and prosecute on the part of domestic authorities. However, such referrals are both consistent with the text of the Rome Statute and its object and purpose, which is to ensure that individuals are held accountable for the commission of international crimes in situations where justice is not sought at the domestic level.

Another option would be for the Syrian authorities to accept the jurisdiction of the ICC under Article 12(3) of the Rome Statute, which would allow the Prosecutor to initiate an investigation proprio motu. If the Security Council or a state was to refer one side of a conflict to the ICC, the Prosecutor could refuse to initiate an investigation under Article 53(1)(c) of the Rome Statute, which requires the Prosecutor to determine that an investigation would be in the interests of justice.

Another difficulty raised by prosecutions at the ICC is the Court’s reliance on the cooperation of States to oversee the criminal justice process. If the jurisdiction of the Court is triggered and the Prosecutor decides to initiate an investigation, the Court will be heavily dependent on State cooperation to gain access to evidence, transfer perpetrators to the Court, and protect witnesses and so on. Past practice has shown that State cooperation has not always been forthcoming in relation to situations that have been referred to the ICC by the Security Council, despite the existence of an obligation to cooperate in the Security Council resolution making the referral. Moreover, whilst a self-referral from Syrian authorities may initially be accompanied by State cooperation, this could easily be lost following a change in government or the decision of the Prosecutor to investigate the conduct of State officials, rendering the Court ineffective.

A further issue associated with the ICC as a forum for justice concerns the Court’s substantive jurisdiction. It is not clear from the text of the Rome Statute whether the Court has jurisdiction to address the use of chemical weapons. Reference to chemical weapons was removed from the Statute during the drafting process as a compromise for States that felt chemical and biological weapons should not be included in the Statute if nuclear weapons were left out. Nevertheless, the Statute was adopted with three provisions that could be read to encompass chemical weapons. The provisions include Article 8(2)(b)(ii) (prohibiting “employing poison or poisoned weapons), Article 8(2)(b)(xviii) (prohibiting “employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices”) and Article 8(2)(b)(xx) (prohibiting “employing weapons, projections and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict). These provisions do not, however, apply to non-international armed conflicts, such as the conflict in Syria. During the first Review Conference of the Rome Statute in 2010, Article 8 was amended to prohibit the use of the same range of weapons in a non-international armed conflict that are not permitted in the context of an international armed conflict. Some ambiguity exists as to the entry into force of the provisions and the ability of the ICC to exercise jurisdiction on the basis of a referral from the Security Council. Putting these issues to one side, the question remains as to whether or not the provisions can be interpreted to include the use of chemical weapons. Another approach would be to bring charges for the war crime of intentionally directing attacks against a civilian population as such or against individual civilians not taking direct part in hostilities. The use of chemical weapons may also constitute a crime against humanity under the Rome Statute if it amounts to a “widespread or systematic attack directed against any civilian population, with knowledge of the attack” and results in one or more of the prohibited acts listed in the Rome Statute, such as murder or torture. It is worth noting that Article 7 of the Rome Statute, which provides the Court with jurisdiction over crimes against humanity, requires the prohibited acts to be carried out “pursuant to or in furtherance of a State or organizational policy to commit such an attack”.

It is clear that the ICC is a possible venue for justice, for the prosecution of violations that have been committed in Syrian armed conflict. The ICC may either exercise jurisdiction over criminal conduct in Syria by Security Council referral or self-referral by Syrian authorities or by Syrian authorities accepting the jurisdiction of the court.

Conclusion 
The Syrian war started with peaceful protests of people demanding democratic reforms and fundamental rights. The war has gone on for years and a lot of atrocities have been committed in the war, the Independent international commission of inquiry on the Syrian Arab Republic has been investigating the international crimes that have been committed in the war since the start of the conflict. There have been deliberate, indiscriminate and disproportionate attacks on civilians, thereby violating the fundamental IHL principle of distinction. There have been the use of unconventional weapons; Chemical weapons have been used, barrel bombs, cluster munitions and incendiary weapons have also been used. There have been the use of starvation of civilians as a method of combat in Syria and civilians have been denied humanitarian aid. There have been sexual violence and rape, children’s rights have been violated and there have been genocide against the Yazidis by ISIS. Although, Syria is not a party to the Rome statute, the situation in Syria can be referred to the ICC by the UN Security Council. Regardless of whether or not the situation in Syria is referred to the ICC, domestic courts will have an important role to play in the fight against impunity for crimes committed throughout the course of the conflict.




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