Without justice and reform there can be no safe environment in Syria

One of the main concerns displaced Syrians have expressed in all the surveys conducted regarding the minimum conditions for return are related to war crimes and crimes against humanity which were committed against Syrians with complete impunity, including the use of chemical weapons, with lasting effects. Accountability for these crimes is a topic discussed mainly in international and civil society forums, sometimes outside the context of safe environment required for the safe and dignified return of displaced Syrians. However, displaced Syrians have a clear view of the importance of accountability for any hope of a sustainable return.  

In the consultations conducted by SACD, it has been clearly established that a process for developing accountability mechanisms to address violations of international humanitarian law during the conflict should be developed as a confidence-building measure to remove perpetrators and rights violators from positions of authority in the returnees’ communities. Naturally, this was one of the key issues discussed at the Geneva conference “Roadmap to a Safe Environment in Syria”.  

The panel discussed efforts by Syrians to compile detailed evidence of crimes, which could someday be used in large-scale prosecution efforts. They discussed the currently limited avenues for prosecution, which have hitherto been confined to European courts. Finally, they discussed the legal reforms that would be necessary within Syria in order to create a safe environment. 

The moderator, Yaser Alfarhan of the Free Syrian Lawyers Association, introduced the topic by noting that justice is inseparable from the achievement of a safe environment, since the methods by which the regime has created an unsafe environment, and by which it has deliberately displaced more than 50% of the population, are precisely those which must be addressed by a process of seeking justice. 

The first speaker, Linnea Arvidsson from the UN Commission for Inquiry on Syria, discussed the mandate of the commission, which is to investigate alleged violations of international human rights law in Syria since 2011 and support efforts to hold perpetrators accountable. She explained that the commission has gathered testimony from nearly 10,000 Syrians and compiled information on over 3,200 alleged perpetrators from all sides of the conflict. She noted the importance of such courageous witnesses, especially among Syrian refugees, for overcoming the rampant disinformation campaigns of the conflict, and explained that such efforts would be endangered if Syrians felt pressured or forced to return.  

However, she also described that inside Syria crimes continue and impunity reigns, with few efforts to hold perpetrators accountable. Outside of Syria, she described that Syrians and their allies have used universal jurisdiction to seek justice, resulting in over 180 distinct criminal investigations in 15 nations. She also noted that Syrians may in the future use innovative approaches such as article 30 of the Convention Against Torture to hold the Syrian regime accountable. She noted that such efforts have grown and widened in recent years, though are still proceeding at a frustratingly slow pace.  

In complete alignment with the steps identified by displaced Syrians in the “Roadmap to a Safe Environment” paper, Arvidsson stated that in order to create a safe environment, the ICRC must have access to all detention facilities, there must be substantial security and judicial reforms, and the whereabouts of tens of thousands of Syrians must be clarified, in addition to other measures. Finally, she agreed with the UNGA resolution calling for action in order to clarify the fate of missing and disappeared persons in Syria. 

Asyad Al-Mousa of the Free Syrian Lawyers Association discussed the challenges of preserving and maintaining evidence for use in legal proceedings. He noted that despite the collection of millions of videos documenting the crimes of the conflict, many are inadmissible as evidence. He also discussed the role of the Free Syrian Lawyers Association in holding more than 180 hearings with more than 1800 survivors and families of victims to communicate on their preferences for justice and accountability. 

Mr. Al-Mousa stated that victims were against any amnesty for perpetrators of crimes, and demanded vengeance or justice, noting that they preferred to pursue justice at the international level due to a lack of confidence in the Syrian court system. He described that the main crimes reported were arbitrary detention, followed by destruction of property, also noting that about 81% of alleged crimes were committed by the Syrian regime, with other armed groups making up the remainder. Finally, he read out the moving testimony of one victim: 

Nerma Jelacic, from the Commission for International Justice and Accountability (CIJA) opened by agreeing with the previous speakers that the Syrian conflict is extremely well-documented thanks to the efforts of organizations like FSLA, and that such documentation is crucial to the long-term pursuit of justice. She noted that past conflicts like the Yugoslav and Rwanda Tribunals have shown the importance of collecting “linkage evidence” which ties the crimes of perpetrators and soldiers on the ground to those responsible at the highest levels of political leadership. She explained that this is the task of CIJA: collecting such evidence in the form of documents and direct quotes from the perpetrators themselves.

She recalled that the initial purpose of such collections was for use in an eventual referral to the ICC, but that there was no international will to refer the case to the ICC or to create a tribunal for Syria. And therefore she noted that the main use of such evidence has been in referrals to European courts, such as in the case of Anwar Raslan. However, she explained that war crimes units in European courts are very understaffed and underfunded, and many are still dealing with cases from Bosnia. She therefore called on European courts to renew their commitment to justice with respect to the Syrian war.

The final speaker of the panel was Dr. Abdul Hamid Awak, a former judge in Syria and a professor of constitutional law who was a major contributor to the Roadmap to a Safe Environment paper. Dr. Awak began by emphasizing the importance of allowing Syrians themselves to define conditions of a safe environment. He described that he held a high position in the Syrian judicial institutions, and that he was threatened with arrest when he declared that arbitrary arrest or detention were illegal. He described that the Syrian constitution does not allow for an independent judiciary. Instead, the judges in Syria are appointed and controlled by the Supreme Judicial Council, which is fully controlled by the executive branch. He explained that judges were under constant pressure and supervision from the security state, and that the regime has historically considered the judicial branch to be an enemy of the state.

The professor discussed the nature of the state of emergency in Syria which has been in place since the 1980s. He described how the emergency went from being a temporary, military measure into a permanent, general legal measure. He concluded that the judiciary has no interest in creating a safe environment, and that if individual judges attempted to protect citizens they and their families would be in extreme danger. Ultimately, therefore, he called for the reforms as outlined in the Roadmap to a Safe Environment paper, in order to create a judiciary, military, and other institutions which would establish a safe environment.

Linnea Arvidsson explained that the Commission shares collected evidence with either international or national prosecutors when it has the consent of sources who provided the information. She noted that they would share information, upon request, with any future international court which abided by international law principles of due process and a fair trial. However, she said that they are unable to publicly release evidence or names of suspects due to a presumption of innocence.

Nerma Jelacic similarly noted that they have shared the evidence they have collected with investigators in 15 countries, in addition to working directly with law enforcement. She noted that this is currently only popular in Europe, where perpetrators can be found, put on trial, and evidence presented. She also noted the importance of increasing the number of cases, but especially of a strategic approach which targets higher-ranking individuals. She explained that through such cases, crimes can be shown as a systematic top-down campaign of torture and abuse. However, she highlighted the limited number of potential Syrian regime perpetrators that can be found in Europe, as most have not left the country since Russia intervened in 2014. Finally, she expressed concern that the issue of justice and accountability for crimes committed in Syria has not been given enough attention in diplomatic negotiations and other discussions, and argued that it should be a crucial aspect of these conversations if social cohesion and reconciliation is ever to be reestablished.

Asyad Al-Mousa emphasized that there are few international mechanisms for Syrians other than European courts with international jurisdiction, saying that “the doors have been slammed in our faces.” However, he explained that the Free Syrian Layers Association is submitting testimony and working with organizations like SIJA and IIIM. Finally, he called for Syrians to lead this effort themselves, calling on civil, political, and legal organizations to work together on this legal effort to gather testimony, prosecute perpetrators, and gather information on those detained in Syria.

Dr. Awak summarized some of the requested legal reforms of the Safe Environment paper, including: an independent judiciary, and a Supreme Judiciary Council comprised of judges rather than politicians, which would help to guarantee this. Additionally, the abolition of exceptional and field courts in the Syrian constitution, and the placing of all judicial authorities under the aforementioned Supreme Judicial Council, with military courts confined to military matters. He noted that additional reforms are laid out in detail in the Safe Environment paper.

At this point the panel opened for questions. Multiple questioners expressed frustration with the absence of prosecution or referral to the ICC hitherto, and asked Ms. Arvidsson about whether the UN Commission for Inquiry is taking further steps. Additional questions were directed at the panel in general, asking the steps that Syrians can take now to better document crimes. Finally, a questioner asked whether the Safe Environment Roadmap paper considers political obstacles and international politics in its demands for reform.

Linnea Arvidsson stated that she shares the frustrations of questioners, but noted that only the UNSC can refer cases to the ICC if the state itself has not subscribed to ICC jurisdiction. She noted that the UN commissioner lacks access to places where prisoners are held incommunicado, and that the ICRC and independent monitors lack access across the country, including in northern Syria. Finally, she noted that while there is excellent documentation of crimes between 2011-2015, as refugee flows have decreased it has become much more difficult to document such violations. She therefore noted the need for documenting more recent crimes in a manner that is safe and effective.

Nerma Jelacic closed with a reminder that accountability is a long-term process of gathering records and establishing the truth, and understanding, in addition to the more widely discussed process of trying and jailing perpetrators. She also noted that once trials of Syrian perpetrators begin, there will be a long fight for decades as individuals are found and put on trial.

Finally, Dr. Awak explained that while the current political reality is bleak, the purpose of the Roadmap to a Safe Environment is to present a unified position of Syrians on this issue, which can be presented to the international community and which can be the basis of a negotiation with them.