International Judicial Monitor
Published by the International judicial Academy of the International Law Institute, Washington, D.C.
with circulation assistance from the American Society of International Law

Summer 2017 Issue

Global Judicial PERSPECTIVe


The Independent International Commission of Inquiry on the Syrian Arab Republic

Richard J. Goldstone

By: Richard J. Goldstone, Former Justice, Constitutional Court of South Africa, First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia, and Regular Columnist, International Judicial Monitor Monitor

On August 22, 2011 the United Nations Human Rights Council established the Independent International Commission of Inquiry on the Syrian Arab Republic. It consisted of three members, Paulo Pinheiro, a Brazilian legal scholar, who chairs the Commission; Karen Koning AbuZayd, an American diplomat; and Carla Del Ponte, the former Attorney General of Switzerland and former Chief Prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). The brief of the commission is to investigate human rights violations and war crimes in Syria since the conflict began in March 2011. However, the Government of Syria has consistently refused permission for the members of the Commission or members of its staff to enter Syria.

That egregious war crimes have been committed in Syria by the military and by officials and members of both the Syrian government and rebel groups cannot be doubted. There can also be no question that the situation in Syria since the beginning of the war should have been referred by the Security Council to the International Criminal Court (ICC). This has not happened only because of the threatened exercise of its veto power by Russia. Since the beginning of the conflict in 2011, Russia has been providing political protection and military aid to the President of Syria, Bashar al-Assad. In September 2015 the Russian military became directly involved in the fighting. It is not likely in the coming years that Russia will support an investigation by the ICC that is likely to implicate its own nationals as potential war criminals. And, without a referral from the Security Council, the ICC has no jurisdiction to investigate war crimes committed in Syria.

The website of the Human Rights Council records that: “Since beginning its work, the Commission has produced over 20 reports, in addition to numerous periodic updates, exposing human rights violations committed throughout the country based on interviews with over 5,500 witnesses and victims.  The Commission’s investigations relied primarily on first-hand accounts to corroborate incidents. Thousands of interviews have been conducted thus far with people in camps and hospitals in countries neighbouring Syria as well as by telephone and Skype with victims and witnesses inside the country. The commission also reviews photographs, video recordings, satellite imagery, forensic and medical, reports from Governments and non-Governmental sources, academic analyses and United Nations reports. To make a finding, the commission requires that incidents be corroborated to a level where the commission had ‘reasonable grounds to believe’ that the incidents occurred as described.” This evidence and, in particular, that of victims and eyewitnesses would be of substantial value in prosecutions that might be instituted  in coming years, whether in a domestic or international court having jurisdiction.

In order to attempt to overcome the inaction by the  Security Council, the United Nations General Assembly, in December  2016, voted in favor of establishing an independent, international mechanism to ensure accountability for war crimes and crimes against humanity committed in Syria. It is called the International, Impartial and Independent Mechanism. It is charged with collecting evidence that might be used in cases in any court that might have jurisdiction. It is significant that 105 nations voted in favor of the resolution and only 15 against it. A French judge experienced in war-crimes tribunals, Catherine Marchi-Uhel, was named to lead it. [see related article in this issue – “Special Report: The IIIM: A Justice Experiment in Geneva” by Iva Vukusic.]


On August 5, 2017 Carla Del Ponte resigned from the Commission. She claimed that she was frustrated because the Commission had no power. She is reported to have told a panel discussion at the Locarno Film Festival: "I am quitting this commission, which is not backed by any political will. I have no power as long as the Security Council does nothing. There is no justice for Syria.” The remaining two members indicated that they would continue to work “for the right to truth of the victims and accountability for perpetrators of the violations and crimes committed in the war in Syria.”

While I understand the frustration expressed by Del Ponte, I commend the resolve of the other two members of the Commission. Del Ponte, of all people, should be well aware that the investigation of international war crimes requires patience and unflagging resolve. It is also necessary to respect the feelings of victims who cry out for justice and acknowledgement. In the early years of the ICTY there was similar frustration in the Office of the Prosecutor. Indictments were issued accompanied by arrest warrants. The alleged war criminals were not arrested even when they passed through road blocks in Bosnia that were set up by members of the United Nations protection forces. It was only after strong political pressure was exerted by some European Governments that sufficient will was found to arrest some of those who had been indicted as suspected war criminals.

Radovan Karadzic and Ratko Mladic were not arrested for more than a decade after they were indicted. Both of them eventually appeared before the ICTY in The Hague. Indeed it was during the term of office of Del Ponte that the Milosevic trial began. It was, of course, a tragedy that his hundreds of thousands of victims were robbed of full justice by his untimely death in his cell in The Hague shortly after the Prosecution case was concluded. Karadzic was arrested after evading arrest for thirteen years. He was found guilty of crimes including genocide and sentenced to 40 years imprisonment. His appeal is pending.

The former President of Chad, Hissène Habré, was known to have been responsible for massive violations of human rights during his time in office from 1982 until he was deposed in 1990. He lived in exile in Senegal. Only after many years of political pressure from human rights groups and some African governments, in the middle of 2013 was he arrested in Senegal and brought to trial before a special court established jointly by Senegal and the African Union. He was found guilty of crimes including rape, sexual slavery and ordering the killing of 40,000 people, and sentenced to life imprisonment. On April 26, 2017 his appeal was dismissed. It took more than a quarter of a century after the crimes were committed for Habre to be brought to justice.

If evidence against Milosevic and Karadzic had not been diligently collected and preserved by the Office of the Prosecutor, no prosecution would have been possible when, after many years they were brought to trial. So, too, no trial could have been mounted against Habré without the evidence that had been collected by a national investigative commission.

I have no doubt that sooner or later some of the war criminals responsible for the massacre of hundreds of thousands of innocent civilians in Syria will be brought to trial and compelled to face the evidence that has been collected by the two United Nations commissions referred to above. I hope that one day a democratic government in Syria will empower its own domestic courts to investigate those crimes and, if not, that other domestic courts might exercise their jurisdiction or failing all of that, that they will be brought before the ICC or some special court that might be established as it was in the case of Habré. Had frustration prevented the collection and preservation of evidence in the cases of Milosevic, Karadzic and Habré they would have escaped justice. That would have been a tragedy for the victims. In Syria, the atrocities continue to be committed. The meticulous investigation of those responsible must continue without abatement or loss of resolve.

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© 2017 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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