The war in Syria has wreaked havoc on the lives of the Syrian people, and affected many others. Since the war began in March 2011, several hundred thousand people have been killed. Some 13.5 million people require humanitarian assistance, and over 10 million people have fled their homes – with 4 million fleeing Syria altogether. This has led to further tragedies, with displaced populations vulnerable to exploitation and death in their search for refuge, even as militants in Syria plot attacks on foreign soil from within Syrian territory.
The war has also witnessed untold depravity and systematic disrespect for the most basic rules of international humanitarian law, ranging from the promotion of enslavement on an industrial scale, to indiscriminate attacks on medical facilities. An Independent International Commission of Inquiry on the Syrian Arab Republic (CoI) established by the United Nations Human Rights Council in 2011 has documented these atrocities in harrowing detail. Another UN special inquiry established by the UN Security Council five years later has identified ‘sufficient information’ of use of chemical weapons to amount to war crimes or crimes against humanity.
Yet the prospects of accountability for these crimes have seemed poor. In the past, the UN Security Council has used its enforcement powers under Chapter VII of the UN Charter to create international war crimes tribunals – as it did for Yugoslavia and Rwanda – or to refer situations to the permanent International Criminal Court – as it has for Darfur. But efforts to do something similar for Syria have failed miserably, running directly into Russian and Chinese vetoes. The most recent such failures to encourage accountability came in March and April 2017. And while there have been isolated national prosecutions, for example in Germany and Spain, these have been understandably rare, given the complexity of the investigation and prosecution of such crimes.
Enter the General Assembly
It took many by surprise, therefore, when the UN General Assembly recently decided to get involved. On 21 December 2016, after a brief but animated debate, the General Assembly adopted Resolution 71/248 establishing an ‘International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011’, commonly known as the ‘IIIM’.
The IIIM, which will be based in Geneva, is mandated to
- collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses; and
- prepare files in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law.
The Mechanism prepares material for use by other actors in criminal proceedings. It is not itself an actor in those criminal proceedings. As a report subsequently issued by the UN Secretary-General makes clear, it ‘provides assistance’, developing criminal files to facilitate and expedite future criminal proceedings — wherever they may take place. The IIIM will serve as a centre for international criminal and judicial cooperation.
Was it legal?
The Resolution creating the IIIM passed with 105 affirmative votes, 52 abstentions and 15 negative votes. Those countries voting against the Resolution were, however, outspoken in their opposition. Several delegations, notably those of the Syrian Arab Republic itself, and the Russian Federation, questioned the legality of the move.
Many of the complaints were neatly summarized in a note verbale – a diplomatic letter – that the Russian Permanent Representative later sent to the General Assembly through the UN Secretary-General. First, they argued, the move broke the ban in Article 2(7) of the UN Charter on non-interference in domestic affairs. Second, it violated Article 12 of the Charter, which limits the power of the General Assembly to deal with matters already being considered by the Security Council. And third, the dissenters argued, the General Assembly did not have power to create a body with prosecutorial powers.
The IIIM is neither an international prosecutorial body, nor a court, but, as the Secretary-General’s Report puts it, a ‘quasi-prosecutorial body’, intended to serve as a specialized legal assistant to help states and other bodies that already enjoy the prosecutorial power or jurisdiction necessary to handle such crimes. The IIIM does not interfere in Syria’s internal affairs, because it is available to any actor to that already enjoys such jurisdiction – including the universal jurisdiction available to prosecute war crimes, crimes against humanity and genocide.
Nor does the Security Council’s consideration of the broad issues around the war in Syria preclude the General Assembly from making recommendations on specific issues, such as accountability. In fact, there is more than fifty years of General Assembly precedent – and two recent cases in the International Court of Justice – that support this approach.
That precedent harks back at least to the early 1960s, when the UN Legal Adviser made clear that Article 12 does not prevent the General Assembly addressing a matter unless the Security Council is also addressing it ‘at that moment’. As ICJ judge Bruno Simma and colleagues have conclude in their authoritative Commentary on the UN Charter, subsequent practice in the General Assembly suggests that Article 12(1) permits action by the General Assembly where such action neither directly contradicts the position of the Security Council nor has been expressly rejected by it. That view seems to find support in two recent cases in the International Court of Justice, dealing with General Assembly requests for advisory opinions on the Israeli wall and on the declaration of independence of Kosovo.
Nor is this the first time that the General Assembly has supported international mechanisms providing legal assistance for the prosecution of serious, international and transnational crimes. Other examples of such support – including the use of UN funds – include the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Independent Commission Against Impunity in Guatemala (CICIG). And there are also parallels between the legal assistance to prosecution of international crimes that will be provided by the IIIM and the legal aid provided to the prosecution of transnational crimes by the UN Trust Fund for Victims of Trafficking in Persons, another General Assembly-backed body.
Some of those criticizing the creation of the IIIM have also argued that it verges on a judicial body, and that the General Assembly cannot create judicial bodies. This is not correct: the IIIM supports other judicial bodies, it does not exercise judicial powers itself. Yet these critics overlook another important precedent; the General Assembly has already, over 60 years ago, created a judicial tribunal – a move that was reviewed and approved by the UN system’s highest judicial body, the International Court of Justice.
Justice for Syria – and others?
So, will the IIIM provide justice for Syria? It is probably too soon to say. It faces considerable legal, practical and political hurdles, including its reliance (at this point) on voluntary funding. Unlike some past wars, however, there are extensive archives of official records, documentary and film evidence, and survivor testimonies (see for example here and here) that have been carefully pieced together in anticipation of future investigations and trials for perpetrators of atrocities during the war in Syria. These private initiatives face their own constraints, but may prove a boon to official investigators in the months and years ahead.
Perhaps almost as important, however, in the General Assembly’s intervention, is the new avenue it points to for international accountability. The IIIM relies not on accountability imposed by the UN Security Council, but through a more cooperative approach, supported by the General Assembly. In this approach, states use the framework of international cooperation offered by the UN to more effectively exercise their own, already existing jurisdiction. If the IIIM does succeed, it may come to be seen as providing a powerful example for victims of war elsewhere about how they, too, can achieve justice. Given the likelihood of continuing Great Power rivalry in the UN Security Council in the years ahead and the consequently diminished prospects for the Council to play a central role in international criminal justice, the General Assembly’s creation of the IIIM may in time be revealed as an important new departure in the continuing story of efforts to ensure accountability and uphold respect for the rule of law.
Featured image credit: UN Photo by Evan Schneider. General Assembly Adopts Resolution Establishing International Mechanism Concerning Syria. Published under fair use via United Nations.