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What counts as evidence of Syria's war crimes?

- October 28, 2014

Civilians inspect a site hit by what activists said was a missile fired by forces loyal to Syria’s President Bashar al-Assad in al-Kalaseh neighborhood of Aleppo. (Hosam Katan/Reuters)
There is no immediate prospect for international justice or accountability in Syria. Efforts to have the United Nations Security Council refer the conflict to the International Criminal Court (ICC) have been stymied by Russia and China. The possibility of setting up an “ad hoc” tribunal to investigate allegations of crimes committed in Syria is more of an intellectual project than a political reality. While the U.N. Commission of Inquiry on Syria has produced a host of impressive and damning reports, the response of states has been meager and the conflict rages on. Even the broader debate regarding “transitional justice” in Syria misses a key point: There is no transition.
In this rather gloomy context of injustice and impunity, some have been comforted by the fact that at least someone is doing something: For the last few years, a small number of private non-governmental organizations have been investigating and documenting evidence of crimes committed in Syria. But what are the risks of such investigations? Do they outweigh the benefits? And is this the birth of a new model for investigating mass atrocities in war zones?
On first glance, it seems that groups like the Commission for International Justice and Accountability (CIJA) solve a key limitation facing other justice mechanisms: On the ground and in active conflicts, they are able to investigate crimes immediately following their commission. Other institutions – like the ICC or the Commission of Inquiry – aren’t able to directly gather evidence or document crimes on the ground. And when they finally do get access to the “crime scene” once the conflict has come to an end, key evidence has often been destroyed.
Indeed, international investigations are generally conservative, owing in part to the high-profile nature of international criminal tribunals and the hazards of deploying international investigators into ongoing conflicts. In the 1990s, investigators from the International Criminal Tribunal for the former Yugoslavia faced significant challenges in investigating ongoing atrocities in the Balkans. When the ICC opened an official investigation in the Ituri province of the Democratic Republic of Congo, it initially only dispatched two investigators. Those individuals were tasked with gathering evidence and understanding the commission of atrocities in an area not much smaller than Ireland. A more recent example is the ICC’s intervention in Libya. The Security Council requested that the ICC investigate events in Libya in February 2011 and the court issued arrest warrants in May of the same year. However, the ICC could only put investigators on the ground in October – the same month the Libyan civil war came to an end. Its cases were consequently built on evidence from sources and witnesses from outside of the country and sources within Libya that were able to gather evidence while the conflict was ongoing.
This points to another advantage for private organizations in Syria: They can be much less risk-averse than other institutions. As Nerma Jelacic of the CIJA says, “We have a higher risk tolerance than courts and U.N. agencies and that is what puts us in a unique situation … we are able to make these decisions quicker and without the security burdens that can sometimes prevent other agencies from getting on the ground and collecting such information.”
These two advantages – the ability to investigate in the midst of ongoing political violence and having a greater tolerance to risk in doing so – are important. But do they outweigh the potential costs of such investigations?
A key concern for any investigation – and the pursuit of justice more generally – is impartiality. The Commission of Inquiry has catalogued crimes and human rights abuses committed not only by the regime of Syrian President Bashar al-Assad but also by opposition groups. This poses a serious dilemma for any group investigating atrocities. Any investigation on the ground and in real time requires cooperation – often from the same groups that are perpetrating crimes. Jelacic readily admits that the CIJA needs to cooperate with some groups that may be implicated in the commission of crimes: “We have been quite open about it. In order to gain access to certain areas we need approval of opposition forces … [and] the majority of what we do are regime offences.”
But it is important not to hold groups like the CIJA to a higher standard than institutions like the ICC. The Hague-based court has also wedded itself to political powers in order to ensure cooperation in the conduct of its investigations. This is evidenced by the fact that, for every self-referral by an ICC member-state, the court has only issued arrest warrants for members of rebel groups or the state’s political enemies. And for every referral of a situation by the U.N. Security Council to the ICC, the court has primarily targeted government actors and adversaries of Security Council powers. In the context of live conflicts, cooperating with unsavory belligerents may just be the only “pragmatic” approach if agencies and institutions are going to get evidence – and mete any justice.
Privately, there is also some concern amongst jurists about how groups like the CIJA collect and document evidence of war crimes and crimes against humanity in Syria. They fear that such evidence could be dismissed if it was ever introduced at the ICC or another international tribunal, potentially allowing Syrian perpetrators to escape prosecution. If witness evidence is tainted or the chain of custody of physical evidence is broken, such evidence would almost certainly be dismissed by judges. If mishandled, any evidence that survived could depreciate in its value. As Frank Dutton, an investigator of Apartheid regime crimes commended by the late Nelson Mandela notes, evidence “collected outside of Commissions of Inquiry or ICC investigations will less likely be admissible in front of judges.” To prevent such an outcome, ICC Defense Lawyer Caroline Buisman maintains that private organizations need to be transparent about their investigatory methods, keep detailed reports on their chain of custody and, when the time comes, produce their investigators as witnesses to corroborate the methods used in collecting evidence.
Jelacic insists that the local investigators are highly trained to collect evidence and document crimes in line with international best practices. Moreover, after the evidence makes the perilous journey out of Syria, it is transferred to analysis units and storage in Europe. Jelacic admits, however, that they can never be 100 percent sure that the evidence will hold up in a court of law.
Still, the CIJA is eager to have their efforts tested. “We would like a chance to test it sooner rather than later,” Jelacic says. And international jurists welcome the opportunity. As Buisman states: “The benefits of having such organizations far outweigh the costs … [and] I encourage these unknown investigative organizations to make our job in the courtroom in terms of challenging the evidence as difficult as they can and anticipate our arguments.”
They may not have to wait very long for their evidence to be tested. A number of states, including Belgium and Germany, seem willing to flex their ability to bring cases under the principle of universal jurisdiction by initiating prosecutions of their own citizens who have allegedly committed crimes in Syria.
Groups like the CIJA may just prove that, in the Jalacic’s words, “it is possible to investigate, document and establish linkage during the context of conflicts.” And if their investigations lead to successful prosecutions, there will be pressure to make the use of such groups the norm, rather than the exception, in investigating international crimes in the context of active conflicts. This, in turn, exposes another risk: creating a competitive market place for the collection of atrocity evidence.
It remains unclear whether the relationship between the organizations and groups investigating crimes in Syria is one of cooperation or competition. Jelacic notes the CIJA has given the Commission of Inquiry access to its evidence. However, when asked whether it has a cooperative relationship with other groups and agencies, the commission replied that “Interlocutors, including those working on documentation, may provide information they have collected to the Commission. This information is welcome and may be used to corroborate material collected by the Commission or to generate new investigative leads.”
Any “kinks” in cooperation require greater scrutiny. Private investigations, according to Dutton, raise issues of fairness, objectivity, impartiality and undue influence on witnesses. These issues could be exacerbated if groups and institutions are competing for evidence. And if they are competing, the question is why? The answer may not come from the organizations and groups investigating Syria but from the (primarily Western) states that are funding groups like the CIJA while simultaneously supporting the Commission of Inquiry and pushing for a referral of Syria to the ICC. Here, a number of questions remain unanswered: Are these states playing different organizations off of each other? Do they view private organizations as simply a means of giving the appearance of doing “something” in support of justice? Are they putting pressure on different groups and institutions to cooperate?
The prospects of international justice and accountability in Syria are dim. Until cases test the evidence collected, we can’t know whether the ongoing investigations by private organizations will stand the tests of legal rigor and contestation. And only time will tell whether this was a one-off attempt to make the best of a bad situation or whether employing private groups represents a novel strategy for mass atrocity investigations and prosecutions.
Mark Kersten is a researcher at the London School of Economics. His work focuses on the nexus of international criminal justice and conflict resolution, specifically examining the effects of the ICC on peace processes and negotiations in northern Uganda and Libya. He is also the creator and co-author of the blog, Justice in Conflict.