A Pandemic, Conflict and Options for Justice for Victims of the Syrian Conflict
by Shannon Maree Torrens

In the teeth of the Coronavirus pandemic, politicians and pundits insist that ‘we’re all in it together’. Yet as deaths climb, it is all too clear that equality in infection does not translate to equality in recovery. In this clear-eyed report by Human Rights researcher and advocate Shannon Torrens, we look to Syria, where this dynamic is set to play out on a truly awful scale.

A young displaced Syrian girl is shown in a widely circulated video online, perched next to her father, her smiling face close to his own as she laughs at the sounds of warplanes overhead. He has taught her not to fear the sounds but rather to laugh at them, a way to stem the trauma from living in a country that has fallen to its knees with civil war since 2011 and arguably now an international armed conflict.

         The Syrian conflict has resulted in more than half the country’s people being forced to leave their homes. Approximately 6.6 million Syrians are internally displaced within their country, with many of those living in refugee camps. In Syria, people have been displaced not just once, but numerous times throughout the conflict. That is in addition to 5.6 million Syrians who have sought refuge in neighbouring countries. This is a country suffering dislocation, desperation and as will be discussed a lack of justice for the international crimes that have been perpetrated.

         More than 13.5 million people in Syria are in need of humanitarian assistance and at least half of those affected are children. One of those children, the young girl in the video, laughs as her father looks at his daughter with a conspiratorial smile. They smile together, as though they are in on the same joke, but yet they are not. His smile belies his real feelings of fear for the future of his daughter and his intention to protect her in the best way he can despite the harrowing circumstances.

         The girl in the video is unaware of the geopolitics that enable the continuation of conflict in her country. Syria has seen an escalation of violence in the northwest and further mass displacement since late last year, with United Nations Secretary General António Guterres calling this period “one of the most alarming moments” in the Syrian conflict. Since December 2019, approximately one million people and half a million Syrian children have been displaced.

         Alongside the protracted conflict in Syria, the world is now dealing with the unrelenting rise of individuals who have been infected with COVID-19, the new pandemic infiltrating the globe. The Syrian people therefore must face not only the threat of conflict but also the looming danger of widespread disease.

         As of 16 April there are now 33 confirmed cases of COVID-19 in Syria and two deaths. There are likely many more who have been infected but have not been diagnosed due to the low testing numbers in Syria, which is deeply troubling in the context of an ongoing conflict and the decimated health care in the country. The World Health Organisation has said that only 64% of the public hospitals in Syria are fully functioning, meaning that the country’s health care system is not in a position to adequately respond in the event of a local outbreak. In response, the United Nations has called for an immediate nationwide ceasefire in Syria to counter COVID-19 in the country. Syria for its part has shut its borders, forbidden movement between provinces and closed schools and restaurants.

         Alongside the compounding trauma associated with the COVID-19 pandemic, international crimes continue to be perpetrated in Syria, as part of the ongoing conflict, without recourse. The commission of these crimes contributes to the displacement and injury of Syrian people, the destruction of their homes and communities and inadequate health care, which has only escalated in recent months. These crimes have therefore hastened the vulnerability of Syrians to not only COVID-19 but also other diseases, as people are forced from their homes and livelihoods and must live in situations that threaten their heath.

         Amidst the harrowing effect of this protracted conflict on Syria’s people, there has been a growing awareness internationally that something must be done to respond to the perpetration of war crimes, crimes against humanity and genocide that have been committed in the country, however both defining and achieving this justice has proven to be almost impossible to date. In innumerable ways, the international community has failed the Syrian people because despite the conflict having been ongoing for nine years, there is impunity for the crimes that have been committed. This impunity has resulted in many questioning the ability of the international community to respond effectively to international crime if it is unable to do so with respect to the world’s most pressing conflict. 

         COVID-19 and the susceptibility of Syrians to the disease is further evidence that justice responses to international crimes perpetrated in Syria should be given far more serious consideration and concerted effort than has previously been the case, particularly by powerful countries. In terms of justice options, the most obvious is the prosecution of these crimes at the International Criminal Court (ICC) in The Hague, the world’s first permanent response to international crime which was established in 2002 pursuant to the Rome Statute, a treaty which now has 123 states parties. The ICC has however not prosecuted any crimes committed in Syria.

         The reasons for this are both political but also a result of the fact that the ICC was established as a treaty-based court. Syria is not a state party to the Rome Statute which means that the ICC does not have prima facie jurisdiction. The UN Security Council could refer the situation of Syria to the ICC, an avenue which gives the court jurisdiction over non-state parties however such a referral can be blocked by one of the 5 permanent members of the Security Council, which has indeed been the case in the Syrian context. Russia and China, allies of Syria, blocked a referral in 2014, thus highlighting the implications of having a political body making decisions about international justice issues.

         A UN Security Council referral is not impossible if the current political dynamics change and China and Russia decide to support Syrian prosecutions, however this is highly unlikely. Even in the event of a referral, the ICC requires the cooperation of states to obtain evidence because the ICC does not have its own police force, which would prove difficult in the Syrian context as Syria would be unlikely to cooperate, at least in the current circumstances.

         An alternative to prosecution at the ICC would be the establishment of an ad hoc purely international tribunal by the UN Security Council with a focus on the Syrian conflict. This is not unprecedented, with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 by the UN Security Council. The following year, in response to the 1994 Rwandan genocide, the International Criminal Tribunal for Rwanda (ICTR) was established, again by the UN Security Council.

         In the Syrian context, the creation of a UN Security Council tribunal for Syria would (like a referral to the ICC) be frustrated by the opposition of Russia and China. This suggests that the old way of establishing these purely international criminal courts, is not as straightforward with respect to today’s most pressing international conflicts and the commission of international crimes, such as is occurring in Syria. If the prosecution of these crimes can be so easily obstructed through political interference then this suggests that old avenues of international justice and even current methods, no longer work in today’s political environment.

         A hybrid court, as was established in the case of Sierra Leone and Cambodia might be a more feasible option to end impunity in Syria but only if there is a change of government in Syria. Hybrid courts are normally a collaboration between the situation state (in this case Syria) and a facilitating authority, such as the United Nations. Hybrid courts are however often hamstrung by both domestic and international political interference. The Extraordinary Chambers in the Courts of Cambodia (ECCC) in particular has been criticised for the alleged political interference of the Cambodian government in the Court’s work, which has called into question the viability of hybrid courts going forward. 

         If a government that is part of a hybrid court agreement does not work in earnest collaboration with its partner, such as the United Nations, in pursuit of justice, then the court cannot function. As a hybrid court would require the cooperation of the Syrian government to be effective, the likelihood of one being established is incredibly low, at least whilst the current Syrian President al-Assad is still in power.

         In the absence of an established court for Syria, there has been an international attempt to collect evidence of international crimes and human rights violations committed in the country with a view to future prosecutions. In 2011 the United Nations Human Rights Council established the Independent International Commission of Inquiry on the Syrian Arab Republic to investigate violations of international human rights law and crimes perpetrated in Syria. 

         Then in 2016, the UN established the International, Impartial and Independent Mechanism for Syria (IIIM) which is mandated to assist in the investigation and prosecution of those responsible for the most serious international crimes committed in Syria since March 2011. The “Mechanism” is not a court, but rather gathers evidence that may be used in future prosecutions. The Commission for International Justice and Accountability (CIJA) is another entity working on these issues, an NGO, that is pursuing justice for international crimes in Syria through the collection of evidence.

         These are all new ways of responding to international crime and new initiatives in international criminal justice. They are new ways of thinking and doing in an attempt to move past old ways of responding to international crime in the face of political interference and obstruction.

         Whether any of this evidence will ever be used in an international court of law is uncertain, particularly considering the highly political nature of prosecuting international crimes committed in Syria. There have also been attempts to prosecute these crimes domestically pursuant to universal jurisdiction, such as in Austria, Germany and Sweden, amongst other countries, which should be further pursued alongside an international response. This domestic option for prosecution does however have the same evidentiary difficulties as exists at the international level, meaning that it is a considerable challenge to obtain evidence from Syria.

         There is also of course the possibility of prosecuting these crimes domestically in Syria itself, but given the current state of the country and legal system, effective, impartial trials pursuant to the rule of law are unlikely. Even with an effective legal system and new leadership, prosecutions in Syria would likely be unpopular amongst certain sections of the community who may fear prosecution. Even after a conflict, those who have committed international crimes often remain within the ranks of the government, making domestic prosecutions challenging if not impossible, as has been evidenced in Cambodia with the Khmer Rouge trials.

         Despite the number of attempts to prosecute international crimes committed in Syria it has thus far been impossible to do so at the international level largely due to political opposition, which should have no place in considerations of justice, impunity and the rule of law. Due to the difficulty in prosecuting international crimes committed in Syria, there is therefore a need for greater legal creativity in justice responses and more earnest political support by the international community.

         States must be brave enough to put aside political interests and place pressure on those who obstruct justice initiatives and who protect violators of international crimes. There must also be innovation with efforts to create a new type of justice response that will actually work in the context of Syria. I believe that it is possible for international justice to manifest itself in this beneficial way through reflection and reform and I certainly hope that one day in the near future there is justice for Syrians such as Alwa al-Mohammad.