To Prevent Enforced Disappearances, Rethink the Justice and Security Equation

By David Tolbert*

A 2013 art project for Bassel Khartabil, one of Syria’s leading pro-free speech and democracy activists, who was recently confirmed as having been secretly executed while in detention in a regime prison in 2015. ©Pete Ippel

A 2013 art project for Bassel Khartabil, one of Syria’s leading pro-free speech and democracy activists, who was recently confirmed as having been secretly executed while in detention in a regime prison in 2015. ©Pete Ippel

Nearly every city and village in Syria has a story to tell about enforced disappearances: civilians being snatched off the streets or from their homes by the police, Syrian military or an armed group, never to be heard from again. The victims are usually tortured, killed or enslaved. Their families are left haunted, not knowing if their loved ones are alive or dead.

Today, we are seeing an alarming rise in the incidence of enforced disappearances around the world, particularly in a number of the “Arab Spring” states, such as Syria, Egypt and Yemen, where reaction has triumphed over hope for a rights-based future.

In Syria, we are witnessing a catastrophe the consequences of which will be felt for generations to come. This includes not only millions fleeing their homes, the shredding of the Geneva Conventions and massive criminality by the Assad regime and others, but also the enforced disappearance of over 65,000 people, including entire families and thousands of children.

In Egypt since early 2015, hundreds of Egyptians have vanished at the hands of the state. Secret prisons in southern Yemen, where officials have forcibly disappeared people and ordered continued arbitrary detention, are called “no-return prisons.” And these are just a few of the many places where enforced disappearances are occurring with terrible human consequences.

Enforced disappearance was a phenomenon many thought was a product of the brutal internal conflicts of the 1980s and early 1990s. Tremendous efforts were taken by countries and the international community to address the crime, on a number of fronts. Continue reading

Hope for Justice in Syria from an Unlikely Source

by David Tolbert*

An independent mechanism established by the UNGA is working towards abolishing the reign of criminal impunity in Syria.

UNGA

The Emir of Qatar, the country that led the efforts to establish the Mechanism alongside Liechtenstein, addressed the UNGA in September 2016 ©Reuters

Six years into the carnage in Syria, atrocious crimes run rampant, with savage abuses committed against all groups in the devastated country, and the murderous regime, abetted by powerful allies, is still in power.

The United Nations Security Council remains in a deadlock and unable to take any steps towards ensuring accountability for the massive crimes, with the International Criminal Court left on the sidelines.

However, amid the terrible loss of life, hope that the slow wheels of justice will finally be put in motion emerged recently from an unlikely source – the UN General Assembly.

In December 2016, the UNGA, led by Liechtenstein and Qatarestablished an “Independent Mechanism to assist in the investigation of serious crimes committed in Syria since March 2011”.

With this step the UNGA, usually associated with administrative and budgetary matters, has asserted itself in a highly welcome if unusual manner, signaling the deep frustration with the failure of other UN organs and the great powers to stop the killing in Syria.

The move also demonstrates that small states can galvanise the international community around issues of global significance and catalyse a collective response.

The term “Mechanism” indicates that the powers of this newly established body will not mirror those of a court or a commission of inquiry.

Instead, the focus of its mission will be to collect and analyse evidence, which could then be available for courts or tribunals in the future to prosecute these massive crimes. Continue reading

Prosecutions of Syrian War Crimes

A man inspects a damaged house after an airstrike on al-Yadouda village, in Deraa Governorate, Syria February 15, 2017. REUTERS/Alaa Al-Faqir

A man inspects a damaged house after an airstrike on al-Yadouda village, in Deraa Governorate, Syria February 15, 2017. ©REUTERS

On Thursday, the United Nations announced that a new body is being set up to prepare prosecutions of war crimes and crimes against humanity committed in Syria. UN Secretary-General Antonio Guterres is due to name a judge or prosecutor as its head this month.

While the independent panel, which is officially called 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 [Syria] since March 2011, is not able to prosecute individuals itself, it will collect and preserve evidence and prepare files for future prosecutions which states or international courts can use.

In December, the UN General Assembly voted to establish the mechanism. The United Nations aims to recruit 40-60 experts in investigations, prosecutions, the military, and forensics.

A UN Commission of Inquiry has already been collecting evidence since 2011. It has issued 20 reports accusing the Assad government, rebel forces and Islamic State of mass killings, rapes, disappearances and recruiting child soldiers.

Also on Thursday in a landmark ruling, a Swedish Court sentenced a Syrian man to life imprisonment for violating international humanitarian law through his participation in the execution style-murder of seven men in Syria in 2012. Under Swedish law, courts can try Swedish citizens as well as other nationals for crimes committed abroad.

Other European countries have similarly started investigations and prosecutions against people accused of committing serious crimes in Syria. The cases are based on the principle of universal jurisdiction and are possible because of the arrival in Europe of both victims and suspects as refugees.

Amnesty International reported last week the Syrian government executed up to 13,000 prisoners in mass hangings and carried out systematic torture at a military jail.

German Jihadist Convicted of War Crime

2. Ilawyer photo - German Jihadist Guilty of War Crime

© Torsten Silz/AFP

The Oberlandesgericht Frankfurt am Main, a Frankfurt Regional Court, has convicted Aria Ladjedvardi, a 21-year-old German Jihadist with Iranian roots, of two years in prison for committing a war crime for appearing in a set of photos with severed heads of Syrian army servicemen in Syria.

Indeed, between March 8 and April 16, 2014, a group of fighters attacked a checkpoint in the Idlib Province. According to the statement read by the court this Tuesday, they captured, beheaded and impaled the heads of two soldiers on spikes before putting them on public display.

The defendant posed with the heads of those soldiers in three photos found in his mother’s mobile phone, one of which was shared on the social network Facebook.

The Regional Court emphasized Mr Ladjevardi’s inacceptable behavior and held a violation of international humanitarian law for treating the two Syrian army soldiers “in a degrading and humiliating manner”.

Continue reading

National European Courts Prosecute Syrian War Crimes

While the United Nations Security Council seems unable to reach any agreement on referring the Syrian situation to the International Criminal Court or to set up a special tribunal on the ICTY and ICTR models, European courts have started prosecuting Syrian war crimes.

A grieving man in front of a destroyed mosque in Taftanaz after government forces attacked the town on April 3 and 4. ©2012 Robert King/Polaris

A grieving man in front of a destroyed mosque in Taftanaz after government forces attacked the town on April 3 and 4. ©2012 Robert King/Polaris

Prosecutions find legal basis in the genocide legislations adopted by most European countries and providing their courts international jurisdiction. About 15 European states have established units dedicated to investigating and prosecuting war and genocide crimes. Over the past decade, authorities in Europe have launched 1,607 international war crimes cases in domestic jurisdictions, including cases on torture, murder, rape, crimes against humanity and genocide, while another 1,339 are ongoing, according to the European Union judicial cooperation agency Eurojust.

In order to build evidence, European authorities are seeking testimony from some of the hundreds of thousands of refugees fleeing Middle East violence, through screening of migrants’ phones or invitations at arrival to testify. The challenge is to identify perpetrators, who may be European citizens who have joined Islamic State – more than 4,000 European citizens are estimated to have left to fight in Syria, of whom around a third have since returned home – others may be militants who have traveled to Europe from Syria or to Europe last year. “You may have lots of victims or witnesses in one place, but you can’t move with a prosecution until you have a perpetrator in your jurisdiction,” said Matevz Pezdirc of the European Union’s Genocide Network.

With both witnesses and perpetrators on their territory, European prosecutors have already brought some cases. A German citizen is on trial for war crimes after Facebook posts showed him posing alongside decapitated heads. Last year, Swedish courts convicted a Syrian on the basis of a video showing him torturing a fellow combatant.

John Kerry: IS is Committing Genocide in Iraq and Syria

John Kerry delivering his statement on IS on 17 March 2016

John Kerry delivering his statement on IS on 17 March 2016

United States Secretary of State John Kerry today officially determined the Islamic State group (IS) is committing genocide and crimes against humanity against Christians, Yazidis and Shiite groups in Iraq and Syria. His statement meets a congressional deadline for a decision that was long expected. Though the declaration is not related to any obligation of the United States (US) to take further action against IS or to any prosecution against members of this group.

On 14 March, the US House of Representatives passed by 393 to 0 a non-binding resolution that declared that “the atrocities perpetrated by ISIL against Christians, Yezidis, and other religious and ethnic minorities in Iraq and Syria constitute war crimes, crimes against humanity, and genocide.” Continue reading

Calls for Ad-hoc Tribunal for War Crimes and Mass Atrocities in Syria

As the war in Syria entered its fifth year, the United Nations Independent International Commission of Inquiry on the Syrian Arab Republic on Tuesday called for the establishment of an ad-hoc tribunal to prosecute both sides to ensure accountability for the perpetrators of mass crimes committed in Syria.

Members of the UN Commission of Inquiry on Syria ©Martial Trezzini / EPA

Members of the UN Commission of Inquiry on Syria ©Martial Trezzini / EPA

Paulo Sergio Pinheiro, Chair of the Commission of Inquiry, addressed the Human Rights Council in Geneva warning that the Syrian civil war had intensified in its destructive scale as combatants used aerial and ground weapons “indiscriminately and disproportionately” and committed an alarming number of human rights violations.

The Commission of Inquiry reiterated the Commission’s dedication to find a path to justice through a Security Council referral to the International Criminal Court (ICC). However, it held that ensuring accountability was a process rather than a single action and that impunity had lasted for too long. Continue reading

Takfiris Want to Create a “House of Blood”

Zaid al Hussein

High Commissioner for Human Rights, Zeid Ra’ad Al Hussein

Today, the High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, addressed the Human Rights Council. Amongst the issues he addressed in his lengthy speech, the High Commissioner lashed out at the Islamist Takfiri group who recently murdered US journalist James Foley and hundreds of other defenceless victims in Iraq and Syria.

The massacres, beheadings, rape and torture attributed to the group “reveal only what a Takfiri state would look like, should this movement actually try to govern in the future,” said Zeid, the first Muslim and Arab to serve as UN High Commissioner of Human Rights.

For him, the jihadist militants who have seized large swaths of Iraq and Syria are intent upon creating “a house of blood”.

Zaid’s speech to the UN’s 47-member council came a week after it held an emergency session on the jihadists, deciding to send a fact-finding mission to Iraq to document the extent of their abuses.

If you wish to read the Commissioner’s full speech, click here.

HRW Report on Children in Syrian Armed Groups

syriacrd0614_reportcoverYesterday, Priyanka Motaparthy, a researcher in the Children’s Rights Division of Human Rights Watch (HRW), published a report documenting on the recruitment and use of children by armed groups in Syria. The 31-page report entitled “Maybe We Live and Maybe We Die” recounts the experiences of 25 children and former child soldiers in Syria’s armed conflict. Priyanka Motaparthy interviewed children who fought with the Free Syrian Army, the Islamic Front coalition, and the extremist groups ISIS and Jabaht al-Nusra, an Al-Qaeda affiliate, as well as the military and police forces in Kurdish-controlled areas.

The investigation reveals that non-state armed groups in Syria have used children as young as 15 to fight in battles, sometimes recruiting them under the guise of offering education, and as young as 14 in support roles. Extremist Islamist groups including the Islamic State of Iraq and Sham (ISIS) have specifically recruited children through free schooling campaigns that include weapons training, and have given them dangerous tasks, including suicide bombing missions.

“Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities” is a war crime under the Rome Statute of the International Criminal Court (ICC) and the Optional Protocol to the Convention on the Rights of the Child, ratified by Syria in 2003,  bans government forces and non-state armed groups from recruiting and using children, defined as anyone under 18, as fighters and in other support roles. Continue reading

Russia and China Veto Security Council Resolution on Syria Referral to ICC

UN Security Council (c) UN/Evan Schneider

UN Security Council (c) UN/Evan Schneider

Today, at 10h00 New York time, the UN Security Council voted on a draft resolution introduced by France to refer the situation in Syria to the International Criminal Court (ICC). The resolution failed to pass when Russia and China, permanent members of the Council, vetoed the resolution.

Samantha Power, US Ambassador to the UN, in her statement following the vote criticised Russia and China for impeding access to justice for the

Syrian people. She also emphasised the importance of holding Russia and China to account:

“While there may be no ICC accountability today, there should be accountability for those members of this Council that have prevented

accountability.”

The US agreed to support the resolution after ensuring that Israel would be protected from prosecution before the Court in relation to its occupation of Golan Heights in Syria. Responding to criticisms that the resolution was biased, Power said:

“I agree. [The resolution] was biased in favour of establishing facts, tilted in favour of establishing peace.”

The veto has been called an “endorsement of impunity” by the Lithuanian representative and “disgraceful” by the United Kingdom.

The result is unlikely to come as a surprise following the statement made yesterday by Vitaly Churkin, Russia’s Ambassador to the UN, who called the resolution:

“simply a publicity stunt which will have a detrimental effect, unfortunately, on our joint efforts in trying to resolve politically the crisis in Syria.”

Today’s vote marked the fourth veto of the Syrian situation in the last three years.

Since Syria is not a party to the Rome Statute of the ICC, the Court may only exercise its jurisdiction over the situation if Syria were to accept the jurisdiction of the Court by way of an Article 12(3) declaration or the Security Council were to refer the situation to it.