The United Nations General Assembly voted yesterday to establish “the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011” (“the Mechanism”). The vote was 105 to 15, with 52 abstentions. The US voted in favor of the measure.
This step is significant for three reasons. First, it sidesteps the Security Council which has been unable to refer the ongoing atrocity crimes in Syria to the International Criminal Court or to establish an ad-hoc international or hybrid tribunal to prosecute them, principally because of Russian and Chinese resistance (and maybe now U.S. resistance as well). The Mechanism established by the General Assembly is only a partial substitute for Security Council action, but it is a start. Unlike the Security Council, the General Assembly lacks the authority to establish a tribunal and it cannot mandate countries to cooperate with the entity, though it can recommend that the Security Council take such actions in the future. Thus, for now the Mechanism can only prepare the ground for a future tribunal, relying on the voluntary cooperation of states and civil society to collect evidence of crimes for future prosecutions. Specifically, the Mechanism is mandated to:
collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses and to prepare files in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law …
Second, the establishment of the Mechanism is important because it demonstrates that despite the turn against international engagement and towards nationalism that has marked this last year, a significant number of states are still willing to stand up and insist on accountability for international crimes. The General Assembly vote further shows that states can be creative in finding solutions when the established paths to accountability are blocked by political forces.
Third, the General Assembly vote dramatically increases the likelihood that there will in fact be accountability one day for the crimes in Syria. The ad-hoc international criminal tribunals (for the former Yugoslavia, Rwanda, Sierra Leone, and Cambodia) and the International Criminal Court have produced important precedents of accountability that allow the victims of atrocities elsewhere to ask, why not here? A commitment by the General Assembly to collect the evidence of crimes, and the actual collection of that evidence, will only add to the pressure to insist that the perpetrators of grave crimes in Syria one day face justice.
Because the General Assembly can only “call upon all States, all parties to the conflict as well as civil society to cooperate fully” with the Mechanism, the efforts of interested states and of civil society already engaged in collecting evidence will be critical to the success of this effort. One of the first organizations that the Mechanism will want to contact is the Commission for International Justice and Accountability (CIJA), which has been funded by a small group of countries for the past four years to collect evidence of crimes on the ground in Syria to a criminal justice standard, an attribute that makes CIJA stand apart from many other groups (full disclosure: I serve as one of the Commissioners of CIJA).
The creation of CIJA was in many ways a first step toward the General Assembly vote that occurred yesterday. It has already collected roughly 700,000 pages of documents and conducted interviews with numerous witnesses, including with Syrian regime insiders. Thus CIJA and other civil society organizations have acted during these last years when nobody else could – when the UN was paralyzed – and they have collected, analyzed, and safely stored evidence that otherwise would have been lost. Going forward, the new UN Mechanism will benefit from the work of CIJA and others, but it likely cannot replace them. Given the limited mandate of the Mechanism, the investigative work of CIJA and others will need to continue. The role of the Mechanism will be to amass, further analyze, and prepare the evidence collected by these groups and by states in anticipation of future prosecutions.
Editor’s Note: For further reading on whether the UN General Assembly has the authority to establish an international criminal tribunal for Syria, please see Derek Jinks’ earlier post for Just Security.