Accountability Pursuits in Syria — Quick-Review Notes (r2p)

r2p and Syria

• The Syrian conflict (from $2011$) is a pivotal case for the Responsibility to Protect (r2p) framework, which prioritizes civilian protection from mass atrocity crimes and assigns host states primary responsibility, with third states stepping in when protection fails.
• In practice, civilian protection was limited: UNSC vetoes by Russia and China blocked binding actions, while some Western states pursued military campaigns with their own atrocity concerns.
• As an alternative emphasis, accountability mechanisms were advanced to address international crimes, including the International, Impartial and Independent Mechanism (IIIM) on Syria and the Independent Institution on Missing Persons in Syria (IIMP), together with attempts at universal jurisdiction and other initiatives.
• The article argues accountability efforts, while legally innovative, did not sufficiently address civilian protection or end the mass atrocity situation; they should be integrated with broader protection measures.

Accountability Developments

• International, Impartial and Independent Mechanism (IIIM)

  • Established by UN General Assembly Resolution $71/248$ on $21 December 2016$ to assist in investigation/prosecution of serious crimes in Syria since $2011$.
  • Non-binding mandate: collect, preserve, and analyze evidence; prepare case files to facilitate independent proceedings in competent jurisdictions; evidence can be used in national or international courts.
  • By $September housands 2024$: IIIM received $395$ requests and assisted in $207$ investigations; some cases led to indictments/convictions in France, Germany, the Netherlands, and Sweden.
  • Inspired the creation of similar bodies: UNITAD (Iraq, for ISIS) by UNSC $Resolution 2379$ ($2017$) and the Independent Investigative Mechanism for Myanmar (IIMM) by HRC $Resolution 39/2$ ($2018$).
  • Limitations: IIIM’s conclusions are not judicial findings; it cannot adjudicate guilt or directly enforce prosecutions; it can only support later proceedings.

• ICJ Case: Canada and the Netherlands v. Syrian Arab Republic

  • In $June 2023$, Canada and the Netherlands brought a case against Syria under the Convention Against Torture (CAT), asserting erga omnes obligations (the obligation not to commit torture is owed to the international community as a whole).
  • The ICJ issued an Order on $16 November 2023$ confirming standing of non-injured states to invoke erga omnes obligations and proceed if jurisdictional criteria are met.
  • The case diversifies avenues for accountability; enforcement depends on compliance with ICJ judgments, which lack direct enforcement power, and on states’ willingness to act on such determinations.

• Universal Jurisdiction (UJ) Cases

  • Since $2011$, more than $40$ universal jurisdiction cases have been pursued in Europe (notably Austria, France, Germany, Spain, Sweden, Switzerland, Netherlands).
  • Notable verdicts: Eyad A. sentenced to ≈$4.5$ years (Feb $2021$) for aiding/torture; Anwar R. sentenced to life imprisonment (Feb $2021$) for co-perpetrating torture; The Hague District Court (January $2024$) convicted Mustafa A. for torture as part of the Quds Militia.
  • Distribution of defendants among actors: Syrian government officials (≈25 ext{%}), ISIS/Jabhat al-Nusra (≈25 ext{%}), Free Syrian Army (≈37.5 ext{%}).
  • Constraints: trials typically require the suspect’s physical presence; in some jurisdictions, trials in absentia are possible but enforceability is problematic; many perpetrators remain outside reach; identification and witness protection challenges; national war-crimes units are often overstretched and prioritize other threats.
  • Prosecution scope remains limited to individuals rather than state responsibility; greatest-level perpetrators from the former regime largely evade justice.

• French Arrest Warrant (Chemical Weapons focus)

  • In $November 2023$, a French court issued an arrest warrant for Bashar al-Assad, Maher al-Assad, and two other officials for complicity in chemical weapons attacks, notably the Ghouta attack (Aug $2013$).
  • The Paris Court of Appeals, on $26 June 2024$, upheld the lawfulness of the arrest warrant, noting that prohibitions on chemical weapons reflect customary international law and that immunities can be waived for acts not within official duties; this represented a notable challenge to traditional head-of-state immunity in certain mass-atrocity contexts.

• Chemical Weapons Tribunal (Conceptual/Proposed)

  • Nov $2023$: Syrian civil society groups proposed a special international tribunal to prosecute chemical weapons use in Syria, potentially via a multilateral treaty pooling jurisdictions (a model akin to Nuremberg).
  • June $2024$: A Working Group to Advance Proposals for International Criminal Accountability for Chemical Weapons Use was established to move the idea forward.
  • Rationale: address impunity gaps for chemical weapons use beyond the jurisdictional limits of the ICC and the OPCW investigations; could rely on pooled universal jurisdiction.
  • Constraints: no treaty or tribunal established yet; would entail supra-national universal jurisdiction; enforcement and reach would depend on participants’ consent and potential absence of lower-level perpetrators in participating states; significant practical and political hurdles remain.

Accountability in the Midst of a Mass Atrocity Situation

• r2p imposes third-state responsibilities to prevent and respond to mass atrocity crimes when domestic protection fails; accountability was pursued as a tangible, lower-cost avenue to respond.
• However, accountability initiatives were not linked to broader civilian protection or a path to ending the mass atrocity situation; they operated in parallel rather than as part of a comprehensive protection strategy.
• Key insight: accountability can contribute to long-term justice, deterrence, and record-keeping, but without parallel efforts to end the mass atrocity cycle and protect civilians, its impact on protection outcomes is limited.
• Overall assessment: Syrian accountability innovations expanded legal tools and set precedents, but fell short of delivering broad civilian protection or comprehensive justice, casting accountability as an important but insufficient response within a broader r2p failure to end the conflict.

Conclusion

• The Syria case expanded international tools for addressing impunity and produced legal precedents that influenced other mass atrocity contexts.
• The reach and impact were limited by jurisdictional constraints, non-binding mandates, and the absence of a broader strategy to end the mass atrocity situation or to protect civilians in a timely manner.
• For r2p to be effective, accountability initiatives should be integrated with wider civilian protection efforts and transitional justice mechanisms to translate legal innovation into tangible protection and lasting peace.