For all the talk of justice for mass atrocities in Syria and myriad mechanisms aimed at forcing the international community to bring Syrian war criminals to account, the world has very little to show. But several recent developments at the United Nations General Assembly could lay the foundation for the day when justice in Syria becomes possible.
With the leadership of small and middle powers such as Lichtenstein and Canada, the U.N. General Assembly achieved something historic and unprecedented on Dec. 21: It voted overwhelmingly in favor of a resolution creating “the 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.” The International, Impartial and Independent Mechanism (IIIM) is mandated to collect and analyze evidence of mass atrocities and human rights violations in Syria with the aim of facilitating future international criminal proceedings.
The initiative to create the IIIM via the General Assembly is both remarkable and positive. But, as it stands, it is unlikely to immediately deliver meaningful accountability or justice to Syrians, especially not in the short term. The General Assembly does not have the power to set up a tribunal or to compel states to cooperate with its investigations. Without the approval of the Syrian government or additional approval of the Security Council — neither of which will be forthcoming — no functioning court can be established from the General Assembly’s resolution.
What, then, is the point? If properly constituted, the IIIM has a unique opportunity to achieve two aims: delivering accountability for atrocities in Syria as well as addressing the cost and the inefficient pace of trials, endemic concerns of war crimes tribunals. The states behind the effort hoped that, if the outline of a court were agreed to, it could be subsequently fleshed out — if we build it, they will come. There is some risk to this approach, of course. Global justice already suffers from heightened but unmet expectations. Treating the establishment of the IIIM as a fait accompli, without a plan for its development, risks widening that expectations gap.
A number of critical issues remain unclear. Who will fund the IIIM? Who will be in charge? What would its terms of reference and specific mandate be? My research on accountability mechanisms in Syria suggests some possible answers.
I have previously written about the emergence of a “marketplace” of international justice institutions. The massive asymmetry between the demand for accountability and its supply, particularly in the case of Syria, has produced competition between judicial institutions and accountability mechanisms. Civil society organizations like Amnesty International and Human Rights Watch document human rights violations and atrocities. The Commission of Inquiry on Syria, set up by the U.N. Human Rights Council, studies evidence of crimes and issues substantive reports on the matter. While the International Criminal Court (ICC) lacks jurisdiction in Syria, it could target belligerents who are citizens of ICC member states. Domestic prosecutorial authorities have generally been sluggish, despite the many Syrians in their jurisdictions. Finally, the Commission for International Justice and Accountability (CIJA) is a private nonprofit organization, whose network of investigators has been collecting linkage evidence on the ground since 2012 with the aim of producing case-ready files for inclined prosecutors to use.
Despite their shared goals, these organizations and institutions don’t always get along. They view the most appropriate approaches to achieving accountability for atrocities differently and defend those approaches vehemently. They often view new developments as threats to their institutional interests. This has been especially clear in the Syrian case.
The IIIM is an opportunity to imagine a new kind of arrangement, ensuring that various mechanisms and institutions for justice in Syria cooperate. One way to achieve this would be to formally outline how these mechanisms should collaborate with each other and feed into the work that the IIIM does.
For one, the IIIM could rely on the investigative capacities and resources already in place in CIJA as well as the Syrian Commission of Inquiry and any domestic investigations of crimes in Syria. By relying on existing work, states wouldn’t need to set up and pay for a whole new investigation of crimes in Syria. States animating the IIIM can ensure that this is the case because many of them are also the CIJA’s main funders. As I have argued before, the CIJA has distinct advantages over public institutions like the ICC or any U.N. body. Because of its higher risk threshold, CIJA staff can investigate on the ground while a conflict is ongoing. As a result, they collect the most useful and trial-ready evidence for prosecutors, expediting potential prosecutions and making international criminal justice more efficient.
Many groups are nervous about adopting CIJA’s approach as a new model of war crimes investigations, evidence collection and preservation. But CIJA has been on the ground since the beginning of the conflict. Ignoring such matters are rarely so black and white, but they are in this case: There is only one organization that has collected the type of evidence of international crimes in Syria that can be used to convict Syrian war criminals.
Of course, there are also shortcomings to address. Because CIJA works on the ground, it has developed a cooperative relationship with opposition forces. It doesn’t investigate them, focusing instead on government and Islamic State crimes. This risks reproducing another problem of international criminal tribunals, like the ICC, which tend to go after one side of a war and not the other. To mete out impartial justice, the IIIM will have to find means to investigate all sides of the Syrian conflict.
Solving the Syria accountability conundrum can help to solve the wider international criminal justice puzzle. The stakes could not be higher. Christian Wenaweser, Liechtenstein’s ambassador to the U.N., pointedly told the General Assembly ahead of the vote that: “We have postponed any meaningful action on accountability too often and for too long.” Efforts to achieve justice in Syria have been piecemeal and suffered from competition among the various accountability mechanisms. The General Assembly’s decision to create an IIIM represents a unique opportunity to reimagine and reconfigure how international justice mechanisms operate together and one day achieve accountability for the victims and survivors of atrocities in Syria.
Mark Kersten is a researcher based at the Munk School of Global Affairs at the University of Toronto and is the creator of the blog Justice in Conflict.