the International, Impartial and Independent Mechanism:
How to Confront Challenges in this Regard
By Lawyer Reem Alksiri
It’s quite evident that armed conflict aspects and effects; including documented crimes, especially crimes against civilians, arrests, forced disappearances, brutal torturing, children exploitation for fighting purposes, sexual violence, as well as chemical attacks, all forms of war crimes, crimes against humanity, forced evacuation, and genocides, have played a major political role that obstructs any possibility to hold certain parties as accountable for crimes, and the attempts to reach a kind of impunity for crimes perpetrators from any sort of punishment or legal accountability. Thus, all attempts to open the door for the Syrian cause file to be submitted to the International Criminal Court have been hampered. Facing such a political dilemma at Security Council; UN General Assembly has interfered by creating a neutral independent international mechanism to give a hand in carrying out investigation and judicial prosecution against the perpetrators of the most dangerous crimes in Syria, as it has been authorized to identify individuals, groups and/or entities involved in crimes committed in Syria.
Because such crimes are still constant up till now, and they represent grave violations to the International Humanitarian Law and Human Rights; the purpose of this study is to clarify the reasons behind the failure of international criminal court in this regard, and the improbability of filing lawsuits before such a court that is concerned in war crimes in Syria on one hand, and to demonstrate how independent fact-finding human rights commissions that have been created seven years ago along with launching the international mechanism depending on UN resolution, and the impact that such commissions have left on the trials which took place in Europe pursuant to lawsuits filed by war crimes victims who suffered from grave violations of International Humanitarian law principles. This explains the role of politics in serving as a tribunal and the political impact reflected on fact-finding commissions work, and the formation of the new mechanism, as well as thinking deeply in politics impact on the filed lawsuits, since they would be carried out at several states possessing international competence to settle such lawsuits before their national courts, such as Germany, France, Spain, or other European states. This study covers as well the trials that would be carried out later at International Criminal Court, if international political situations will change, so that the court will be able to open the door for justice to be established.
This study will be divided into two parts:
First: Legal block before international criminal court, manifested by the inability to submit any lawsuit before the international criminal court.
Second: the political dilemma impact and the challenges that the international mechanism would confront.
First: The Legal Block manifested by the inability to file any lawsuit before International Criminal Court as far as the war crimes perpetrated in Syria are concerned.
The international criminal court competence will be defined according to the sort of crimes to be investigated, so that this court could commence in prosecuting the crimes perpetrators and taking them to courts. This court competence has been defined as to pass judgment for the most dangerous crimes represented by the crimes of genocides, crimes against humanity, and crimes of aggression against the statute of the court. However, the international criminal court does not have any automatic competence that enables it to file any lawsuit automatically and independently, since such lawsuits against such war crimes perpetrators must be filed and submitted by certain parties defined by the court statute, and this can be done by adopting any of the following techniques:
1- Referring the case and filing the lawsuit by a state member in this court
It was agreed, in Rome Statute, that any state member in the statute of the international criminal court is entitled to refer the case to this court. This agreement has been reached just to encourage the states that have not endorsed this statute to sign Rome Statute in order to be able to make use of the competence of the international criminal court. Thus, any state member in Rome statute might refer any case to international criminal court according to the provisions of article no. 14 of the statute of the international criminal court which states the following:
a- The state should be a member in Rome Statute
1- The state member might refer any case that seems like a crime or crimes that go under the court competence, to the general prosecutor. Such a state might ask the general prosecutor to carry out an investigation about such a case in order to be settled if a certain person must be charged of such a crime or crimes.
2- The case shall define, as much as possible, the relevant circumstances with available documents and evidence attached by the referring state.
Thus, any state member in Rome Statute could refer to the general prosecutor any case that seems to be a crime or crimes that go under the competence of the international criminal court. This state might decide whether there might be any criminal prosecution for any person or persons, whether they are actual effective doers, or just contributors in such crimes.
b- In the case when the state is not a member in the court statute
In the case when the state is not a member in Rome Statute, like the case of Syria, in this situation, the state should submit a declaration to the international criminal court whereby it should give its consent to the competence of this court. Since Syria is not a member in Rome Statute, and has never sent any consent to the court competence, and it’s quite evident that it will never take such a procedure at all, then this means that this door would be closed for good and the international criminal court cannot be reached right now.
2-To file a lawsuit by a decision to be passed automatically by the general prosecutor before the international criminal court.
According to article no. 153 of the statute of international criminal court which states the following:
a- The general prosecutor might commence investigation automatically depending on the information pertaining to the crimes that go under the competence of the court.
b- If the general prosecutor concluded that there is a reasonable basis to commence the procedures of investigation; he shall submit to pre-court department a request in order to be granted a permit to carry out investigations, attached with any supporting materials collected by him. The victims might carry out pleadings before pre-court department, which is the preliminary department, according to the procedural and evidence rules.
However, general prosecutor’s authorities are limited to filing a lawsuit, depending on several reasons for his initiative manifested by commencing the investigation, obtaining a permit for investigation by the preliminary department, provided that the state should be a member in the statute of the international criminal court. If the general prosecutor has filed a lawsuit by himself; this means that Syria must be a state member in Rome Statute, or Syria should give its consent to the competence of criminal court voluntarily. This means that the door is still closed before filing any lawsuit against the war crimes perpetrators in Syria.
c- Referring the case to the Security Council
UN security council is authorized to refer the case, alongside with the state member in Rome Statute, or the general prosecutor to the international criminal court, and this council is entitled to file a lawsuit and referring it to the court, as article no. 13, paragraph B has mentioned that: “Security Council might refer to the general prosecutor, depending on Chapter VII of UN Charter, a case in which a crime or crimes of this kind seem to have been committed”. In this case the Security Council would enjoy the discretionary authority to adapt the committed crimes and grave violations according to international humanitarian law and human rights as they threaten international peace and security.
Basically, article no. 17 of UN charter, paragraph 3, which gives the security council the authority to issue such a resolution in this case; has restricted the situation to a majority including at least nine members of SC, and this majority should combine the votes of all permanent members unanimously.
Similarly, security council might ask the court, via a resolution to be passed under Chapter IIV to stop any suspension or investigation for one renewable year, pursuant to article no. 16 of the statute of the court.
It’s quite clear in the Syrian case that politics profoundly affect the procedures of filing lawsuits before the international criminal court, since all attempts made by the security council to refer the situation in Syria to the international criminal court have all failed due to political reasons.
The impact of politics means that the court, as a judicial entity, is not really independent. So, it is better not to restrict its competence practice nor to file any lawsuits unless depending on the law. Such competences should not be linked to political entities or commissions that might hamper the process of such a court which has been originally formed to preserve international peace and security.
Linking security council to such a mechanism to perform its duties means that the cases submitted to the court are really politicized, and that they went beyond the legal frame, as it is the case in Syria. It’s quite evident that linking the court to referral resolution to be passed by the security council means that the current situation would be kept as it is for unlimited time, without taking any step by the security council to file lawsuits in this regard, since the role to be played by the security council is paralyzed as it is linked to veto right.
It’s worth mentioning here that the authority of the security council can be described as a wide discretionary authority according to Chapter IIV, and that’s why its authority is absolute and unlimited to the legitimacy principle, as much as it is restricted to politicization and the pressures practiced by the states which use veto right such as Russia and China, among other countries.
Second: the impact of political dilemma and the challenges confronted by the mechanism
Due to the political dilemma at the security council and its inability to refer the Syrian case to the international criminal court, considering that the international community is bound to apply accountability principle provided by the Humanitarian law and human rights, therefore UN general assembly was obliged to interfere to pass a resolution relevant to creating a neutral independent international mechanism in order to give a hand in carrying out the processes of investigations and performing judicial prosecution against the persons who are responsible of the most dangerous crimes committed in Syrian, under the international law, starting from March 2011. This mechanism has been created due to the inability to file lawsuits against the war crimes perpetrators in Syria, after closing the door for establishing justice because of the reasons that I have already mentioned on one hand, and to avoid the state of inaction as far as the Syrian situation is concerned on the other hand. By establishing this mechanism which does not replace the criminal court for sure, rather it is just a kind of a preparatory level for the lawsuits which would be filed in the future, this resolution seems like a precedent as it has been suggested specially for the Syrian situation, since no other similar resolution has been passed for any similar situations.
It’s seems that we can ask about certain challenges related to the process of such a mechanism; for that reason, we can study the challenges in details and itemize them as follows:
1- Structure and finance
Although almost a year has passed after the resolution related to creating such a mechanism has been issued; yet its formation and structure is still stumbling, and nobody has been assigned as responsible until lately. The structure of this mechanism is still ambiguous, and its bylaw process is still pending. The finances that are supposed to be granted for the process of such a mechanism during the first year have not been fully collected, and this failure led to a decreasing interest in the mechanism and ebbing the prospects attached to this mechanism.
2- The relationship between the mechanism and fact-finding investigative commissions and international organizations.
Although investigation committees have exerted high-level efforts throughout seven years in collecting variety of evidence and have prepared several reports about documented violations and crimes in Syria; yet there isn’t any tangible result out of such documentations for the reasons that I have mentioned above as far as filing lawsuits before international criminal court are concerned.
So many inquiries might occur to one’s mind, such as what’s the kind of the relationship that might be established between the new mechanism and the investigation committee that has been formed by the United Nations via human rights council since 2011? What’s the destiny of thousands of documents, testimonies and evidence that have been collected by investigation team? Will the work of such a team end after the formation of the new mechanism or will it continue under its umbrella? What’s the fate of the documents and evidence collected by investigation team about using chemical weapons? What’s the fate of the investigation, documents, and/or evidence collected by several international organizations such as the international center for accountability and justice, amnesty international, and human rights watch? Would such a mechanism create an investigation team or will it be enough for it to collect evidence via other investigation organizations and/or committees? Can evidence collection process affect all criminals, including foreign countries such as Russia, Iran, the militia of Hizbollah, Turkey, and/or international coalition or will it be limited to certain parties?
All such questions, and many more, are till occurring to all of us in my opinion. The most important question, however, is when will such questions be answered?
Considering the fact that the mechanism team will include prominent legal figures, so it’s quite important to create a kind of integration between the team members, so that fact-finding committee would be responsible of providing reports about the results reached through the mechanism team’s performance that is based on collecting, saving, and analyzing data in order to be submitted to international and/or national courts, provided that both teams’ performance would not be contradictory, so that a persistent work for seven years shown by fact-finding committee might not be forgotten. The mechanism team should be granted the authority to utilize such files and reports that have never been omitted or neglected. This mechanism must be represented as the first step towards establishing justice. The same thing must be applied on the work done by the independent international organizations.
As long as the mechanism is performing its duties formally as a sub-commission formed by UN General Assembly, and is capable of signing agreements with other states and/or entities; will such a factor create a kind of political pressure on its work, so that it could be seen as another obstacle in the face of justice? or would this team leap over such a thing via transparency and neutrality throughout its work?
Many meetings, interviews and conferences and symposiums have been held, but no answer is given for such questions.
3- The relationship between the mechanism team and Syrian organizations
The most important question is about the kind of the relationship between the mechanism and the Syrian organization interested in documenting and observing such violations, because Syrians are so depressed and desperate and they feel that all efforts are futile and fruitless in this field.
As mechanism team enjoys a special integral relationship with the independent international fact-finding committee for Syria which has prepared many reports about the committed crimes and grave violations of human rights there, and it neutrally dealt with all active organizations in the field of human rights; and as the relationship between Syrian organizations and fact-finding committees was separate just to respect the principle of fact-finding committees’ performance neutrality, and this was quite reasonable and plausible for both parties; yet this was totally different with mechanism team that is authorized to collect evidence related to humanitarian law and human rights violations that must be documented and saved in order to establish justice at international courts, this means that lawsuits shall be filed later before such courts. It’s widely known that the Syrian organizations have obtained a lot of evidence and paid dearly for them throughout years of violations. This mechanism is authorized to prepare files to facilitate and accelerate independent fair criminal procedures. It’s unreasonable for Syrian organizations to be just a source for these evidence or only an observer for what will happen during the process of mechanism team work if such organizations have been prevented to play their integral role completely with the new mechanism team. This means that the efforts exerted by such organizations in collecting such evidence and documentations should be respected, and the Syrian cause is originally their cause in the first place, therefore they should be accepted as an integral part of the team, and as a major part of mechanism team, and their work should be fully considered, and they should be allowed to play their major role in cooperation with the new mechanism team.
4- The relationship between the mechanism and current trials and those that will be held in the future at national and/or international courts.
Because the mechanism is not a court, and has not got any authority whatsoever to prosecute criminals, since its work is based on collecting and documenting evidence at high technical levels to be presented later to courts, and judicial international commissions that focus on the most dangerous crimes in Syria; although the new mechanism team’s work is limited to a neutral independent mediator’s role, which serves as a connector between criminal evidence about the committed crimes and the judicial prosecutions that are not confirmed in the future, so shall it be an obstacle or a shortcoming in performing its work if the authorities given to the mechanism that has been formed do not allow it to cooperate, authorize, and/or share evidence with human rights organizations to serve that purpose on one hand, and with the legal team that is working on filing lawsuits before national jurisdiction in Europe on the other hand?
Despite the fact that such evidence should be available if the first and foremost purpose to be attained through the mechanism is to serve as a connector between the exerted efforts in the field of collecting evidence that have been performed simultaneously with the process of crimes committing and criminal acts and trials at the end of the day. Will the role of this mechanism be limited to registering, saving, collecting evidence systematically, including testimonies given by witnesses, and criminal evidence according to the standards of international criminal law? This means that such evidence could be used in the current trials that are held at several European countries. Consequently, mechanism team should support the legal team that is collecting evidence in order to file lawsuits against war crimes perpetrators in Syria. It seems quite clear that the mechanism should not leave such a matter as a shortcoming, rather, it must form and communicate with the teams formed by international organizations that are working on collecting evidence in order to commence in filing lawsuits and prosecutions before national European jurisdiction, especially when we learn that the mechanism job is to present information and evidence to national and/or regional courts and judicial commissions that might or would enjoy a judicial jurisdiction in the future to settle most dangerous crimes committed in Syria.
In my humble opinion; it seems as a wide gap to limit the process of information and evidence exchange and sharing before courts and judicial commissions, particularly as there are several attempts calling for widening the scope of information exchange and sharing to include fact-finding mechanisms, compensatory programs, and projects aimed to define missing persons. It’s evident that there isn’t any clear plan adopted by the mechanism team if its members are going to share the evidence and information mentioned in one case file with other multiple judicial jurisdictions or not . Therefore, it is necessary to create a team made up of members from several organizations in order to work on organizing the relationship between Syrian organizations, mechanism team, and fact-finding committees. Actually, this is a technical necessity, not only meant to establish a kind of trust in communication between Syrian organizations that have not received any response or reaction as far as their work on the Syrian file is concerned, along with the support and trust that the Syrian people shall give to such a team, as there are international organizations trying to document and save the evidence which preserve the rights of the Syrian people and this can be achieved by punishing and prosecuting war criminals and the perpetrators of crimes against humanity in Syria.
In conclusion, I see the mechanism as a precedent, as I have already described it, in the history of international jurisdiction. Therefore, if such a mechanism failed to fulfil its duties and tasks including collecting evidence to be used at trials that is taking place or might take place later; it might turn into another obstacle that will stand in the way of establishing justice, if it is allowed to collect and accumulate evidence without achieving the ultimate goal of its creation, due to political alliances or global political circumstances that might overwhelm and sweep it and close the door of justice in the face of the Syrian people for good..
Such challenges and inquiries need immediate answers, because time is an important factor when it comes to justice, as belated justice would lose a great deal of its meaning and significance.