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.