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Syria and the Courts: A Legal Perspective on Applying Justice!

Syria and the Courts: A Legal Perspective on Applying Justice!

Saturday, 10 April, 2021 - 11:15

Justice could go missing from view, but it does not vanish or die, quickly reappearing and rising to the surface. Thus, on the Syrian crisis’s tenth anniversary, we saw serious international moves to hold the Syrian regime accountable, as demonstrated by states that sanctioned individuals closely associated with Syrian President Bashar al-Assad.

However, it is a joint oped by 18 European foreign ministers published a week ago that calls for our attention because of the significance of its statements.

“Our countries are committed to ensuring that war criminals and torturers will not go unpunished.” It adds: “In the past 10 years nearly 400,000 people have been killed and more than six million have been forced to flee the country to escape “countless violations of human rights.”

The ministers also said that “full light must be shed on this decade of atrocities,” and that they will: “continue to call for the International Criminal Court to be allowed to investigate crimes alleged to be committed in Syria and prosecute the perpetrators.”

In this context, I propose legal ways that allow for achieving justice within the framework of international law. I have mentioned them before, though every draft resolution against the Syrian regime submitted to the Security Council that calls for all its crimes against humanity to be referred to the International Criminal Court is swiftly brought down by Russian and Chinese vetoes. We mention the French proposal submitted a few years ago in response to the request by the United Nations High Commissioner for Human Rights. It included glaring documents and thousands of pictures of the persecution, hunger, and torture that the Syrian people have been subjected to in the regime’s prisons. In fact, if that French initiative had gone through at the time (it is one of several attempts made by France and others to prosecute the Syrian regime) and a resolution had been issued by the Security Council, the court would have been able to launch investigations into the Assad regime’s crimes. Indeed, it is unthinkable for this tragic state of affairs to go on and for a head of state who has killed thousands of his people to go unpunished for his crimes. Therefore, the question that comes to mind revolves around the possibilities for bringing Bashar al-Assad and his military cohorts to trial in accordance with international law, thereby holding them legally accountable.

There are those who see that an International Criminal Court’s investigation, the establishment of which has been approved by over sixty countries, is the mechanism for launching a case against Assad. They consider these crimes to fall within their original specialty; we find that articles 5, 6, 7, and 8 of ICC’s Rome Statute address the crimes that have been committed by Bashar al-Assad. Ratione temporis is not an issue either. Although war crimes are not subject to a statute of limitations, article 11 limits the court’s jurisdiction to crimes committed after July 1, 2002, meaning that the Assad regime’s crimes fall within the court’s jurisdiction. However, the hindrance here is that the Syrian government has not ratified the court’s statute, meaning that the court would not accept the case.

What is the alternative, then? The solution would be to submit a proposal for a resolution to the Security Council, and this is what indeed happened years ago. The French adopted it at the time, and the vote had gone in their favor, the Security Council would have referred it to the ICC in accordance with Article 13 of the court’s statute, but as is well known, the result was negative because Russian and Chinese vetoes obstructed the referral. This failure had been expected by everyone familiar with the Security Council’s internal mechanisms, what goes on in its corridors, and what is said behind the scenes. For this reason, we should head elsewhere, opt for another mechanism. What is called international justice is within the reach of the states that have signed the Geneva Conventions, which affirms the principle of individual criminal responsibility in the articles common to the four Geneva Conventions of 1949, as these legal agreements have what is known as universal jurisdiction, according to which any Geneva Conventions signatory has the right to prosecute those accused of committing war crimes. Therefore, in my estimation, the onus is on Arab countries, which must demand that these countries make use of their legal right.

In the event of a lack of enthusiasm in these states, given the transformations and unprecedented circumstances in the region in general, we would have to return, and here is the crux of the issue, to the General Assembly, which approved the principle of international cooperation in tracking, arresting and extraditing individuals who have committed war crimes and crimes against humanity in a 1973 resolution. Accordingly, if this scenario were to play out, a decision would be issued to establish an international criminal tribunal for Syria, similar to International Criminal Tribunal for the former Yugoslavia. This approach finds support in Article 22 of the United Nations Charter, which states that “the General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions.” This means that the issuance of a General Assembly resolution would lead to the establishment of a criminal court to try Syrian political and military authorities for their crimes in accordance with global jurisdiction.

This legal option has been proposed and is well known. It comes at a time when the international community’s responsibility for justice is multiplying amid Security Council paralysis, which means that the ball is in its court. It must establish an international criminal tribunal for Syria in accordance with international law.

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