• Toby Cadman

The Guernica Solution

Accountability in Syria

Published by Ciara Church. for The Bowerman and Greig Blog - International Law, Women's Rights here

About the author - Ciara Church is a Second Year Durham law student hoping to work in international law with a particular interest in human rights, women's rights and the rights of the child.



The Syrian conflict began with a peaceful uprising, but in the past 8 years has managed to displace between half and two-thirds of the population, both internally and as refugees. Combined with the death toll 511,000[1], the need for accountability grows each day, from the government, terrorist organisation such as IS and from intervening states. Combined with the 8 million refugees, each a victim, there have been countless human rights violations, war crimes and crimes against humanity within the territory. Whilst headway is being made by countries such as France and Germany exercising their use of Universal Jurisdiction, issuing several warrants for arrest, there is a struggle to gain accountability for several complex issues.


The Issue

The first problem is that Syria is not a signatory of the Rome Statute and therefore not a state party to the International Criminal Court (ICC). Set up in 2002 as a method of prosecuting for war crimes, crimes against humanity and genocide, the ICC has faced strong criticism for being ineffective and at times even racist.[2]Despite such criticism, it remains the most obvious method of holding the Syrian government to accountability however, the ICC does not have jurisdiction to investigate and prosecute Syria. Whilst the UN Security Council has the power to refer an investigation, all countries must agree; With Russia as a permanent member of the council, it is unlikely that they will allow a reference to be made.


The Guernica Solution

A potential solution to this has been found by the Guernica37 group[3]. The Amicus Curiae brief submitted to the Pre-trial Chamber questioned the jurisdiction to persecute for crimes against the Rohingya people from Myanmar through Bangladesh. As the Rohingya refugees were physically forced into Bangladesh (an ICC state) from Myanmar (not an ICC state) it was ruled that persecution could be brought via Bangladesh as the crime was committed on their ground. In addition, the judge ruled that if it could be proven that if either an element of a crime mentioned in article 5 of the Statute or part of such a crime is committed on the territory of a State that is party to the Statute under article 12(2)(a) of the Statute then the court has jurisdiction.

In 2019 Guernica submitted two Article 15 communications to the Office of the Prosecutor to apply the ‘Myanmar decision’ arguing that the situation is analogous, this is still to be decided upon. At present, this may be the most viable solution for gaining some accountability from the Syrian government. 


A Special Tribunal

An alternative mechanism would be the establishment of a Special Tribunal, such as the International Criminal Tribunal for Rwanda (ICTR) set up to persecute persons responsible for genocide and other serious violations of human rights. The ICTR indicted 93 individuals, sentencing 62.[4]Yet, the scale of Assad’s regime is much larger and much more complex. Members of the government, foreign fighters and complying businesses must all be brought to justice to attain full responsibility. It has been suggested a multi-state tribunal may be formed in compliance with internal laws. However, this process would take great diplomacy and time. The decision as to where to locate a tribunal is complex enough; should it be in one of the member states, Jordan or Syria itself? Simply the mass of cases itself is an issue as those awaiting trial could wait so long, they would effectively be interned, which is problematic in itself. 


Issue of foreign fighters

Then comes the issue of foreign fighters of which there are around 27,000[5]all whom must be held for accountability. The UK government defines foreign fighters as UK nationals travelling overseas to serve with extremist groups presenting a potential threat to the UK, both while they are overseas and when they return to the UK.[6]However, whilst they pose a serious threat, focussing the conversation of terrorist action on foreign fighters can be seen as westernising the conflict, rather than gaining accountability for the Syrian refugees and victims. Nations, such as Great Britain, are currently refusing to repatriate IS fighters and place them on trial nationally due to them being deemed a security risk and have threatened to withdraw citizenship. This would not only deny a basic human right but would also negligently avoid the responsibility of seeking accountability to another nation. 

In April, the German Government approved a draft bill allowing it to strip Germans with a second nationality who fight abroad for recognised terrorist organisation’s of their German citizenship.[7]This arguemtn only makes the situation more complex and difficult to trial such persons. The unwillingness of countries to repatriate to persecute is common and yet, such unwillingness only hinders the ability of victims to seek accountability.

However, Iraq has accepted the repatriation of 250 fighters[8]from Syria and each shall be trialled for the Human Rights abuses they have committed according to Iraqi law. This is still problematic due to concerns over whether Iraq’s capacity to ensure judicial integrity has been breached. Moreover, the Iraq justice system has been strongly accused of using ‘draconian’[9]methods of abuse, arbitrary arrests and sexual violence. Finally, Iraqi law permits the use of the death penalty[10], which Europe is strongly against. Whilst it is imperative justice must be brought, it must also be the right sort of justice and respect the right to a fair trial and not invoke further violation human right violations. 


Women and Families- A Short Insight

Due to the recent case of Shamima Begum, the issue of women and children has been highlighted. Both groups can be split between two categories, the innocent and the indoctrinated. The innocent group features women coerced and forced by their husbands to go to Syria. Largely put in domestic jobs or used as sex slaves these women are also victims of the conflict. However, there are also those who whilst were non-combative, are still dangerous members of IS[11]. Some known to help abuse other women such as the Yazidis and important for the indoctrination of children. Children too are victims, indoctrinated from a young age, and yet some may still pose a serious threat if simply returned to the nation countries. 

The philosophical questions are endless. Who is more dangerous and holds more responsibility? A mother, who chooses to go to Syria and indoctrinates her children with the aim of them becoming soldiers for the organisation, or the son who has never known any different but commits acts of violence to enact his mother’s beliefs? The answer is arguably both, and yet it would be difficult to create a space which can conduct thorough substantive investigations of both and apply the correct sanctions. 

Gender is a key issue. Due to a narrative of female victimisation and unsuitable legislation, women are able to manipulate the court in cases with a lack of substantive evidence against them making it difficult to prosecute females who may pose as much of a threat as their male counterparts. However, this is obviously also not the case of many women who are true victims. Katherine Brown, a University of Birmingham academic emphasised the necessity of case by case basis to ensure justice whilst reminding the UK that ‘We do not have a revenge-based justice system and in the process of justice we need to consider rehabilitation.’[12]In all cases questions of the age of indoctrination and the impacts of cultural gender imbalance must be considered when investigating the crimes of foreign fighters, particularly in regard to women and young people. 

Thus, there are issues when fighters are repatriated and issues when they are not. Whilst the setting up of a specialist Tribunal appears the most sensible (and technically legally possible), it is difficult to recommend such an approach due to its complexity. But it remains imperative that accountability must ultimately be sought.


References

[1]https://www.hrw.rg/world-report/2019/country-chapters/syria

[2]https://www.irishtimes.com/opinion/many-criticisms-of-international-criminal-court-have-validity-1.1418128

[3]https://www.guernica37.com/countries

[4]https://unictr.irmct.org/en/tribunal

[5]https://intpolicydigest.org/2016/10/15/how-many-foreign-fighters-in-syria-are-there/

[6]https://www.mi5.gov.uk/foreign-fighters

[7]https://www.aljazeera.com/news/2019/07/german-court-rules-repatriation-syria-isil-fighter-family-190711164005146.html

[8]https://www.persecution.org/2019/03/14/iraq-receives-repatriated-isis-fighters/

[9]https://www.hrw.org/news/2013/01/31/iraq-broken-justice-system

[10]https://www.independent.co.uk/news/world/middle-east/isis-foreign-fighters-iraq-prosecuted-death-penalty-families-mosul-a7987831.html

[11]http://www.live-let-live.org/archives/challenge-returnees-balkans/

[12]https://www.theguardian.com/world/2019/feb/14/after-isis-what-happens-to-the-foreign-nationals-who-went-to-syria

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