Will Syrian War Criminals Ever Face Justice?

There is word today that UN human rights investigators probing crimes in Syria will release the names of war crimes suspects–including potentially Bashar al Assad–to prosecutors in countries that wish to pursue national investigations into crimes against humanity in Syria.

This is both exceedingly unusual and a reflection of how deep paralysis in the Security Council on Syria issues is forcing other parts of the UN system to innovate.

Here’s the story: In August 2011, as it became clear that an uprising in Syria that began in March was quickly devolving into a brutal civil war, the UN Human Rights Council created a Commission of Inquiry to investigate claims of widespread human rights violations.  It was headed by a Brazilian lawyer named Paulo Pinheiro to who would report his findings back to member states.

This is something that the UN does quite often. The idea is that an independent commission working under UN auspices would be a more reliable and impartial investigator of allegations of human rights abuses than, say, the media or civil society organizations that may have an axe to grind. COI’s, as they are known, traditionally write a report or two that provides exhaustive corroborations of allegations of human rights abuses. The COI then sends that report to a UN body like the Security Council or Human Rights Council to take action based on its findings. Back in 2005, for example, a Commission of Inquiry into crimes against humanity in Darfur lead by an Italian jurist found credible evidence of widespread human rights abuses and recommended that the Security Council grant the International Criminal Court jurisdiction to prosecute those alleged crimes. The Security Council complied and Omar al Bashir soon found himself under indictment.

The Commission of Inquiry on Syria has not had as cooperative a relationship from the Security Council, to say the least. It’s published no fewer than 9 reports since 2011 offering lawyerly and often gruesome details of specific human rights violations. In each report, it’s recommended that the Security Council give the International Criminal Court the jurisdiction to prosecute the perpetrators of these crimes. The Security Council–specifically Russia and China — have so far refused to even entertain the idea.

This brings us to news today that Paulo Pinheiro and is fellow commissioners are so fed up with the Security Council’s inability to act on their recommendations that they are taking the unusual step of making a confidential annex of their report that names the alleged perpetrators of war crimes available to national legal authorities upon request. They had originally planned on making this list public. But have since demurred, opting instead to turn the names over to prosecutors who are launching their own credible investigations.

This probably will not include the ICC for now, since the Court has no jurisdiction in Syria absent a Security Council referral. But it could include prosecutors in places like Belgium and Spain, who claim universal jurisdiction for war crimes. From a pure justice point of view, the chances of a Syrian war criminal standing trial in Belgium is fairly unlikely. But from a diplomatic point of view, this is potentially consequential because once the Commission of Inquiry turns those names over to a national prosecutor it is exceedingly likely that those names will be made public. And to the extent that the report names Bashar al Assad as a suspect warranting international criminal prosecution, it could complicate efforts to deal directly with Assad in peace talks.

But the fact is, there are no peace talks of which to speak. And because of dysfunction at the Security Council, there is no effort underway to find justice for victims of war crimes in Syria. This leaves the Commission of Inquiry to have to innovate in the pursuit of justice while the Security Council dithers. And that, in turn, is a powerful demonstration of the value of the Human Rights Council: it is the only part of the UN system singularly focused on human rights in Syria.