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. The work of the IIIM may one day lead to the creation of a war crimes tribunal, but it itself is unlikely to morph into a court. But 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 lay the groundwork for eventual justice in Syria — be it at the International Criminal Court (ICC) or some other tribunal. As such it has the chance 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 are yet to be determined. 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 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. Continue reading