The on-going Syrian conflict is a war that has no parallel in history. With a record of 13.1 million people in need, 6.6 million internally displaced persons, and 2.98 million people in besieged areas it would be an understatement to declare it as the bloodiest war ever recorded in human history. The war is characterized by an eclectic mix of beliefs, ideas, rhetoric, loyalties, backgrounds, and above all judicial systems because of the multiple state actors involved. The presence of non-state actors adds another dimension of complexity, thus confusing the international legal community further in deciding, what mechanism should be adopted for bringing the violators of the law to justice in Syria? The atrocities committed by the governments of the states fighting in Syria, the insurgencies involved and the freedom fighters are multifarious but despite all the sanguinary campaigns on the part of aforementioned actors, none of the international organizations, International Criminal Court (ICC) in particular have been able to play any substantive role in bringing about justice to the victims of the war. The ICC was especially formed to prosecute individuals involved in international crimes such as the crime of aggression, crimes against humanity, genocide, and war crimes. However, despite its qualification and ability to exercise jurisdiction in Syria its hands appear to be tied giving rise to a number of questions; why does the ICC appear helpless in exercising jurisdiction in Syria? Why is the United Nations Security Council not taking any initiative to establish a tribunal to prosecute individuals bearing responsibility for international crimes? Which judicial mechanism is more applicable to Syria?
The Syrian conflict that began in the year 2011 has a great number of elements present that qualify the country for ICC to investigate crimes and hold the perpetrators accountable for their violations of international humanitarian law. Unfortunately, the ICC has no jurisdiction in Syria because the country has not joined the Rome Statute. If a state is a party to the Rome Statue then the case of a country can either be referred by a state party to the ICC prosecutor and or the prosecutor can initiate an investigation proprio motu. But if the state is not a party to the Rome Statue then the United Nations Security Council by means of Chapter VII resolution can refer the situation to the ICC, in the case of Syria this is unlikely to happen. The Security Council members Russia and China have vetoed 12 UNSC resolutions concerning the Syrian conflict since 2011. These resolutions covered concerns including indiscriminate aerial bombing, the use of toxic chemical weapons and force against the civilians, human rights violations, and calls for a cease-fire in the war inflicted state. The Security Council seems to be at a deadlock when it comes to proposing a solution for Syria. In such circumstances, the United Nations General Assembly can break the deadlock by utilizing UN GA Resolution 377 (V). The Resolution states that the General Assembly can make appropriate recommendations to Security Council members for collective measures in a case where the Council fails to exercise its primary responsibility of maintaining international security and peace where the threat to peace, the act of aggression, and breach of the peace is apparent. The UNGA Resolution 377 (V) has been used to organize a special session in the year 2003 by the Assembly, the purpose of which was to request the International Court of Justice to render an advisory opinion on, ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory’. In the United States of America, a member of the UNSC voted against the measure. However, the veto power of the U.S did not work because of Resolution 377 (V ). It can be argued that following the example of Palestine, concerning states by using resolution 377 (V) can create conditions for the referral of Syria ‘s case to the ICC. Many scholars of law criticize the use of Resolution 377 (V) and declare that it can potentially undermine the Security Council’s supremacy. This criticism is very much inspired by imperialist and realist beliefs that discourage abandonment of the pro-discriminating status quo, which favours supremacy of Western powers. Even though Resolution 377 (V) can substantially aid in the process of accountability of individuals involved in war crimes in Syria, it would not materialise because of the interests of the Security Council members specifically Russia and China.
The Syrian conflict is more perplexed than any other conflict that the world has witnessed since the cold war. Presently there are options available to prosecute individuals other than ICC but the success of the prosecution of these crimes depends upon the transparency of domestic courts. The state with the traditional link to the war crimes being perpetrated holds the primary responsibility and jurisdiction to prosecute and investigate them. These traditional links can be based upon the principle of passive personality, territoriality principle and protective principle. On the other hand, if the traditional link can not be established then the universal jurisdiction principle can be exercised by the foreign courts. The judiciary of Syria is currently under the control of the authoritarian government of Bashar Al Assad which leaves space for the following judicial mechanisms:
1. Ad-hoc tribunals
2. Hybrid tribunals
Unfortunately even these two options would not materialize given that ad -hoc tribunals can only be established by the will of UNSC and the hybrid tribunals require cooperation from the domestic courts. Both of these are impossible as of now. Justice in Syria can only come through the application of transitional justice. Establishment of truth commissions such as the International, Impartial and Independent Mechanism on Syria established by the UNGA is one right step in the direction of ensuring justice to the victims of the Syrian civil war.
The Syrian civil war is unique in nature from the wars that have taken place in the past. Presence of multiple and powerful actors in the Syrian civil war serves as a hindrance in the way of justice for the victims. Many categories of international war crimes are taking place in Syria and the inability of ICC to establish its jurisdiction despite all the pieces of evidence present against the Syrian Regime and the actors involved puts a big question mark on the credibility of the International Organisation. As far as the establishment of a judicial mechanism is concerned, the United Nations Security Council would never allow any judicial mechanism to get established for the accountability of individuals responsible for international crimes for two reasons, first being that establishment of such a mechanism would also threaten their respective individuals who are involved in the war and second being their realist interests which they are materialising through international organisations particularly ICC and the United Nations in this case. The only way victims of the Syrian war would ever get justice is when the war ends. But until that time comes it is essential for inquiry commission s to maintain hold of the pieces of evidence against the perpetrators so they can be brought to justice in peace times.
Disclaimer: The views expressed in the article are the author’s own and do not necessarily reflect Dunya News’ editorial stance.