Accountability in the Time of COVID-19: Syria & Iraq

The coronavirus crisis has dominated the global news coverage, but the war in Syria has not gone away. The ceasefire brokered by Turkey and Russia in March 2020 remains fragile, and there are concerns that the Syrian government is exploiting the chaos wrought by the coronavirus pandemic to make gains in Idlib. Humanitarian actors are warning that the virus’ arrival into Syria will be devastating given the collapsed medical infrastructure, which is in part due to deliberate attacks by the regime and its supporters; widespread displacement; and the inability of Syrians to physically distance or ensure proper preventative hygiene when they are living in crowded, informal shelters and displaced-persons camps. Opposition forces still hold thousands of ISIL fighters in makeshift detention centers, which could collapse in the face of the seemingly inevitable coronavirus outbreak. Their pleas for the establishment of an international tribunal to prosecute their captives have gone unheeded. All around the globe, including in the United States, violent extremist groups are capitalizing on the coronavirus pandemic — and the multifaceted state failures it has revealed. They are expanding their ideological narratives (describing the virus as a plague from Allah to punish “crusader nations”), regrouping, and recruiting new followers, particularly among people vulnerable to radicalism who are trapped at home with nothing but the internet for information. ISIL has also embraced a public health mandate, telling its members to avoid “infected lands,” such as Europe, and teaching handwashing.

Meanwhile, some important accountability initiatives addressing crimes committed in the overlapping conflicts in Syria and Iraq are gradually moving forward, as detailed in this post. It remains to be seen whether these efforts can continue while we all lay low in an effort to contain the pandemic.

Chemical Weapons Investigations

Elements of the international community — including individual states, the United Nations, and the Organization for the Prohibition of Chemical Weapons (OPCW) — have launched several chemical weapons documentation efforts in response to the use of chemical weapons in the Syrian battlespace. Following the composition of an OPCW Fact-Finding Mission (FFM), which was tasked with confirming alleged chemical weapons use following the disarmament effort brokered by Russia in 2013, the Security Council directed the secretary-general and OPCW director-general in 2015 to create a Joint Investigative Mechanism (JIM) that could attribute responsibility for the continued use of chemical weapons. The JIM marked one of the few initiatives that Russia allowed to move forward in the Security Council and a rare instance of multilateral cooperation around Syria. After operating for two years, however, Russia vetoed efforts to extend its work, attesting to the fragility of multilateral arrangements subject to the veto.

With the demise of the JIM, states parties to the OPCW voted in June 2018 to grant the OPCW itself the power to go beyond its customary technical mandate and deploy an Investigation & Identification Team (IIT). The IIT, which became fully operational in June 2019, has been empowered to examine approximately 33 chemical weapons attacks that were identified by the FFM but not yet attributed by the JIM to any particular actor. While not geared towards assigning individual criminal responsibility, the IIT has been mandated to establish facts and make attribution to parties to the conflict. In this regard, it can publicly identify individual perpetrators based upon the information obtained or refer that information to other investigative bodies or courts with jurisdiction. For example, the IIT is sharing its information with the International, Impartial, and Independent Mechanism (IIIM), which the General Assembly established in 2016 to investigate international crimes committed in Syria. These developments reflect a new trend of looking beyond the Security Council to advance international criminal justice efforts, even within institutions not normally operating in this space.

On April 8, the IIT released its first report, which is focused on three back-to-back incidents that took place in rebel-held Ltamenah in March 2017. It found “reasonable grounds to believe” (the IIT’s evidentiary standard) that military airplanes and helicopters belonging to the Syrian Air Force dropped aerial bombs containing sarin and chlorine in and around Ltamenah. This included an attack on a hospital that affected 30 persons and collapsed the roof. In total, more than 100 people were sickened by these attacks. The IIT concluded that “[m]ilitary operations of such a strategic nature as these three attacks only occur pursuant to orders from the highest levels of the Syrian Arab Armed Forces,” although it could not precisely outline the chain of command within the 50th Brigade of the 22nd Air Division, the presumed perpetrators. The IIT reached this conclusion based upon earlier fact finding, information received from states parties and experts, direct interviews with witnesses, and chemical analysis of samples retrieved from the sites. It was not, however, able to gain access to Syrian territory, notwithstanding obligations to this effect within, among other things, the Chemical Weapons Convention — which Syria ratified as part of a disarmament deal — and Security Council Resolution 2118 (2013).

Although the public version of the IIT report does not name names (these are contained in a redacted Annex 6 available only to state parties), research by the intrepid Bell¿ngcat collective and the Syrian Archive suggests that a group of identifiable generals, including General Ali Abdullah Ayoub and Brigadier Suheil al Hassan, were present at a command post in Hama to observe the strikes. The Global Public Policy Institute has consistently linked Al Hassan’s so-called Tiger Forces to helicopter-borne barrel bomb attacks. Their reporting has confirmed at least 336 chemical weapons attacks over the course of the Syrian civil war. Ninety-eight percent of these have been attributed to the Assad regime; the rest were presumptively committed by ISIL. According to this research, most (89%) of the government’s attacks involve chlorine, which was not covered by the Russian disarmament deal because it has a number of non-military uses. Its weaponization, however, is prohibited by the Chemical Weapons Convention.

In its investigations, the IIT took into account assertions that these were false flag attacks staged by opponents of the government to implicate Assad, or the subject of fabricated evidence (including victims trained to fake symptoms) designed to give the appearance of state responsibility (as claimed by Syria and Russia). Neither hypothesis held up and attribution to the government was clear.

Additional reports are expected from other incidents identified on the basis of their severity, the reliability of the documentary and forensic information already gathered, the type of chemical substances detected, the pattern of similar incidents, the prima facie reliability of witnesses, and the feasibility of obtaining sufficient information to make a reliable finding under the operative standard of proof.

IIIM and UNITAD Proceeding Apace

Both the IIIM, which was established by the General Assembly, and the U.N. Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD), which was established by the Security Council, continue to develop repositories of information and potential evidence of international crimes to facilitate short- and long-term justice efforts. In December 2019, the General Assembly liberated the IIIM from the need to secure voluntary funding by incorporating the Mechanism into the regular U.N. budget, as had long been advocated, including by Syrian civil society organizations. Per its most recent report to the General Assembly in February 2020, the IIIM has concluded cooperation agreements with a number of partners; opened structural investigations; collaborated with the U.N. Commission of Inquiry, which is still in operation; enhanced its evidence management systems; created analytical work product, such as a mapping of power structures; and fielded 46 requests for assistance from 10 national jurisdictions.

The Security Council established UNITAD in 2017 to collect, preserve, and analyze evidence of ISIL crimes in Iraq (see our prior coverage here and here). It is now conducting a number of focused investigations covering attacks committed against the Yazidi community in Sinjar in 2014, crimes committed in Mosul between 2014-16, the mass killing of unarmed Iraqi Air Force cadets in June 2014, and the persecution of ethnic minorities, including members of the Kaka’i, Shabak, Sunni, Christian, and Turkmen communities. Iraqi domestic authorities will be the primary beneficiaries of its work, but it is empowered to assist with justice efforts elsewhere. UNITAD recently executed an agreement with the European Union to support the digitization of evidence of ISIL crimes in Iraq, and the Stanford Human Rights in Trauma Mental Health Program has been conducting online workshops this week on trauma-informed investigations with UNITAD’s investigators.

Trials in Theater

Numerous counter-terrorism trials are proceeding in Iraq, although the U.N. Assistance Mission for Iraq (UNAMI) has raised concerns that the proceedings — often quite perfunctory — have not respected basic fair trial rights. Most importantly, many of the accused have received ineffective assistance of counsel or been convicted solely on the basis of a putative confession. A number of individuals have been prosecuted for “assisting” ISIL in the form of preparing meals for fighters or serving as human shields. This includes foreign fighters and their families whose repatriation has been rejected by their home states. In short, while also threatening due process, local trials have proved problematic for being both over-inclusive (e.g. prosecuting people who were used as human shields or simply trying to survive under ISIL occupation) and under-inclusive (e.g. prosecuting ISIL fighters only for joining or “assisting” the group and not for more substantive crimes).

The Syrian Democratic Forces (SDF) has repeatedly requested assistance from the international community in the form of an international tribunal to hold and prosecute ISIL detainees. The SDF was detaining upwards of 10,000 ISIL fighters at one point, including 2,000 foreign fighters. In the chaos that followed the surprise announcement of the withdrawal of U.S. troops from Syria, which was later partially reversed, there were concerns that SDF detention operations would be abandoned, allowing ISIL fighters to flee. The SDF’s request for an international tribunal has received support from the head of UNITAD and some states — such as Sweden and the Netherlands — that are reluctant to bring ISIL-affiliated citizens home or that lack the legal framework to prosecute them for their crimes. An international consensus to move forward on this proposal, however, remains elusive.

Key Domestic International Crimes Trials Commence and Proceed Extraterritorially

Germany has played host to a number of important trials that emerged from the interlocking wars. As we’ve recently reported, the first Yazidi genocide trial is proceeding in Frankfurt am Main against Taha A.-J., who stands accused of trafficking, crimes against humanity, war crimes, and genocide. The indictment alleges that the accused bought and enslaved a Yazidi woman and her daughter, who later tragically died of exposure when she was locked outdoors. A.-J.’s wife, Jennifer W., a German national who apparently served in ISIL’s “morality police,” is being tried separately for war crimes, murder, and joining a foreign terrorist organization.

These cases are reminiscent of a case in the United States. U.S. citizen Samantha El-Hassani followed her husband and brother-in-law, who had both joined ISIL, to Syria with two small children. While there, the pair apparently purchased and then enslaved several Yazidi children, who were then sexually and physically abused by her husband. Her young son was reportedly filmed in an ISIL propaganda video holding a rifle and a suicide belt and threatening the West, conduct that might violate the United States’ statute criminalizing the recruitment, enlistment, or use of a child soldier. The SDF picked up El-Hassani in July 2018 and eventually transferred her to U.S. law enforcement. To the disappointment of many Yazidi survivor organizations — including the Free Yezidi Foundation — El-Hassani was never charged with sex trafficking or genocide, but rather with providing material support to terrorism. She eventually pled guilty in November 2019 to engaging in terrorist financing (she had traveled abroad with cash and gold to be used by her husband and brother-in-law). El-Hassani was supposed to be sentenced last month, but those proceedings have apparently been continued, perhaps due to the pandemic.

Meanwhile, in Koblenz, the first case addressing Syrian regime figures — two former members of Assad’s security services charged with torture and other custodial abuses — has also commenced. This latter case is significant because earlier cases involved charges against members of the opposition rather than regime figures.

Both the case against A.-J. and the case against the members of Assad’s security services are proceeding under Germany’s Code of Crimes Against International Law (CCAIL), which allows for the exercise of universal jurisdiction over international crimes. That these domestic cases are going forward is remarkable and a testament to Germany’s commitment to international justice.

Further to our coverage of the so-called “Beatles” case, in which the United States is holding two former British citizens whose citizenship was stripped in connection with alleged actions as members of ISIL, the mother of one of the two won a court battle in the U.K. at the end of March. Specifically, the U.K. Supreme Court overturned a lower court ruling and concluded that the U.K. Home Secretary should not have shared potential evidence with the United States without assurances that the defendants would not be subject to the death penalty. Such assurances are required by the European Convention on Human Rights and its Protocols, which prohibit the death penalty as well as the cruel, inhuman, and degrading treatment occasioned by being on death row, the so-called death-row phenomenon (see our earlier coverage). In 2016, British authorities announced that the U.K. did not possess sufficient evidence to try its former subjects who stand accused of killing U.S., U.K., and Japanese hostages, including U.S. journalists James Foley and Steven Sotloff and U.S. aid worker Peter Kassig. This decision is now under review by the Crown Prosecution Service with a decision expected soon.

So far, as I have previously discussed, when it comes to crimes in Syria, these extraterritorial domestic proceedings are the only credible justice proceedings moving forward to date in the absence of a referral to the International Criminal Court or an ad hoc tribunal dedicated to the war in Syria. There is no question that these domestic cases are difficult and require specialized skills and knowledge. Nonetheless, domestic authorities are proving themselves increasingly adept at dealing with the special elements of international crimes; the interface between international humanitarian law, international criminal law, and the international law on terrorism in all its manifestations; and the unique procedural issues that arise in these contexts, including inter-jurisdictional double jeopardy (where defendants are prosecuted in different fora for different international crimes) and proffering evidence drawn from social media accounts. The phenomenal Trial International has created a series of valuable country studies for readers interested in a more in-depth look at the relevant legal frameworks.

Image: Syrians sell vegetables next to buildings heavily damaged during Syria’s civil war, in the central city of Homs, on April 28, 2020 as Muslims mark the holy month of Ramadan. (Photo by Louai Beshara/AFP via Getty Images)

 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Member of the editorial board of Just Security. Follow her on Twitter (@BethVanSchaack).