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



The IIIM: A Justice Experiment in Geneva

Iva Vukusic
By: Iva Vukusic, International Judicial Monitor Correspondent in The Hague

Faced with growing frustration over inaction about the widespread violations of international law taking place in Syria in the past six years, in December 2016, the United Nations General Assembly did something unusual. Fifty-nine states proposed a draft resolution aimed towards achieving accountability for the vast number of crimes being perpetrated in Syria. Given that there is the understanding that the General Assembly has no power to create an actual court, the states got creative, and voted – 105 of them – to create the International, Impartial, and Independent Mechanism, the IIIM. The IIIM is like nothing we have seen before.

The creation of this new actor in the international justice field was largely lauded as a step forward in fighting impunity. Many among the groups of practitioners, activists, human rights advocates, scholars and others interested in justice in Syria pointed out that the IIIM now has to prove itself through excellent performance. Through its own success, maybe it can set a precedent for the future –a way forward when the UN Security Council is blocked. [see related article in this issue - "Global Judicial Perspective: The Independent International Commission of Inquiry on the Syrian Arab Republic" by Richard Goldstone.]

The war in Syria began in spring of 2011, starting off as a popular movement calling for democratization and the end of regime brutality, and quickly transforming into a brutal civil war, one with significant outside involvement. States like Russia, Iran, Turkey, Qatar, the United States all threw their support behind actors in the conflict, prolonging confrontations and civilian suffering. It has been since established that even though there is a civil war, a proxy-war as well as sectarian component to the conflict – the war in Syria is largely one in which the regime of Bashar al-Assad is perpetrating the majority of the crimes against civilians. All sides commit crimes, but they do not do so with an equally systematic approach, or with the comparable numbers of victims. Various parties also have differing capacities to inflict damage on civilian populations.

Many of the crimes we have seen perpetrated in the six years of the conflict are systematic, large-scale and part of calculated policies to subjugate populations, through starvation if necessary. Arbitrary detention and a vast network of prisons; forced disappearances; torture; sexual violence; summary executions; starvation of besieged populations; indiscriminate attacks on medical facilities and convoys; use of barrel bombs, as well as the use of chemical weapons, have, so far, not resulted in strong, unified actions of the so-called international community. Internal troubles for a number of states and bodies that have previously supported human rights and justice initiatives in countries like Bosnia and Rwanda, drew their attention away from Syria. The U.S. and EU are both a case in point. As time passed, the conflict seemed to become more complicated, pushing any solutions even further away from reach. Political processes, negotiations, cease-fire initiatives have all failed to resolutely end the fighting and civilian suffering.

The IIIM is thus a response to the inability to address those crimes systematically. It is a body that has its headquarters in Geneva, and will be working closely with the already established and important Commission of Inquiry which has issued a number of reports detailing the atrocities in Syria since its establishment in 2011. The IIIM, it must be emphasized, is neither a prosecutorial body nor a court. It is a ‘quasi-prosecutorial body’, as defined in the UN Secretary-General Report on the matter from January 2017. It is a body intended to be, primarily, a specialized legal assistant, a service, to states and other bodies that already hold prosecutorial powers or jurisdiction necessary to address crimes in Syria. Its contributions however do not have to end there. As much as its mandate is clearly defined, within that mandate different approaches to the work can be taken, and as the IIIM is the first institution of its sort – it has to define a direction for itself in uncharted waters.

The Mechanism is to both collect and analyze information, but also prepare files for future prosecutions. In that work it should, according to the UN documents establishing it, lean on the work already done by others and search for gaps it has to fill to maximize effect. As many other international initiatives, it should focus its resources primarily on individuals in the position of leadership. A challenge is, definitely, its financing which is based on voluntary contributions. A


number of states, and the EU, have already contributed to the estimated yearly budget of around thirteen million USD, but stable funding is likely to be an issue for the IIIM in the future.

As much as the key facts are known, it is worth repeating: the IIIM has been established because international judicial responses to the widespread international law violations have been lacking. The ICC has not been given jurisdiction and there is a UN Security Council paralysis, especially since Russia became directly militarily involved in supporting Assad. No ad hoc like the tribunals for Yugoslavia or Rwanda, or hybrid court has been established, or attempted, even though suggestions have been made in that regard. The only response we have seen so far for crimes in Syria, have been states and their domestic legal systems, at times using the principle of universal jurisdiction. For the crisis we are facing, that is not enough, but it is what we have now – so the IIIM was put together to support those, and other efforts, to achieve a measure of justice. The availability of evidence is not the issue. Stephen Rapp, former US Ambassador-at-Large for War Crimes, and a long-time advocate for justice for Syria, argues that the evidence that exists is almost unprecedented in amount and quality.

Civil society and NGO action on this topic, in particular those responses of Syrians themselves, has been impressive. Evidence has never been collected and stored with an eye on future prosecutions as much as it is today in Syria. Local Syrians risk their lives to record events, collect documents and witness accounts. That is why cooperation and trust with civil society in and around Syria must be the corner stone of IIIM’s work. The civil society groups have the networks, the access, the background and experience to access evidence and secure testimony so it is paramount that the IIIM cooperates with them and that work is not duplicated but that it is complementary.

So far, cases have been launched in a number of European countries, in Germany, Austria, Sweden, France, Finland, and Spain, and in others as well, while proceedings have largely centered on so-called foreign fighters and terrorism charges. Investigations on Assad and his close associates in the security apparatus have been launched, but big trials or any involving high level accused have been lacking so far. It has been the smaller fish that has faced justice, if at all.

NGOs have stepped up and filled the impunity gap left open by institutions. The Commission of International Justice and Accountability (CIJA) is one such organization that collects and analyzes evidence, conducts investigations and prepares case-ready files. They have accumulated several hundred thousand files and developed databases with names of potential suspects. CIJA now regularly cooperates with states, and has vast experience and expertise in conducting investigative work. Other organizations, many of them Syrian, established and run from abroad and with local cooperation, have been crucial for efforts to document violations and collect evidence for future prosecutions. It is therefore important that the IIIM finds a way to work with organizations that have been building expertize and trust on the ground for over five years. 

One serious challenge will be making this new institution relevant for Syrians, many of whom may have long lost trust and hope when it comes to international involvement. There is the risk that this institution turns itself into merely a passive depository of information which is only taken, and rarely shared, and that not much of value ever comes out for Syrians on the ground, in refugee camps, and scattered across the globe. What constitutes a good start is an assessment of the needs and exploring ways in which to coordinate what is already being collected between various actors. A challenge is likely to arise from the standards and operating practices in documentation by a variety of NGOs and local actors, and how to put them to good use in various judicial systems, applying sometimes vastly different statutes. The confidentiality of sensitive information and protection of vulnerable witnesses must be placed at the center of any effort in Geneva and on the ground.  

Much is being done to make the IIIM successful. The Dutch Ministry of Foreign Affairs organized an expert meeting in The Hague in March 2017, a consultation and listening-session of sorts, where a variety of actors like practitioners, NGO representatives, and scholars got together to discuss what the IIIM should and should not be. Recently, the head of the IIIM was selected, Catherine Marchi-Uhel, a French judge and practitioner with substantial and valuable experience. Given that nothing of sorts has ever been tried, and that the crimes in Syria are a challenge of epic proportions, the IIIM needs all the support it can get.

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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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