Syrian lawyers, judges and human rights activists are calling for an international tribunal to investigate the grave violations committed in Syria as genocide.
Last week, photos emerged showing former prisoners, their relatives and journalists combing through documents in prisons. As a result, several governments and international organizations called on Syria’s new rulers to ensure that evidence is preserved for future trials.
Despite the legal and political barriers to prosecuting those responsible for the crimes, human rights experts are optimistic that Assad and regime officials may one day be held accountable for their crimes in a court of law.
Experts say that various ways to punish Assad include using the International Criminal Court, based on the Bangladesh and Myanmar model, or cases in national courts under universal jurisdiction.
* 300 Universal Jurisdiction Cases
“Through the jurisdictional pathway established in the Myanmar and Bangladesh cases, the ICC prosecution has the legal capacity to immediately begin investigating all the criminal acts that caused Syrians to flee to Jordan,” Heidi Dijkstal of the Atlantic Council’s Strategic Litigation Project was quoted as saying by Anadolu Agency.
More than 300 universal jurisdiction cases have been filed for crimes committed in Syria worldwide. So far, prosecutions have been launched in multiple countries, including Germany, France, the Netherlands, and Switzerland.
Legal experts are exploring various avenues for justice, including making recommendations to the ICC to follow the Bangladesh and Myanmar model and ensure universal jurisdiction through national courts.
Assad and his father Hafez have been accused of a series of serious crimes and abuses over the past 54 years, including torture, rape, mass executions, enforced disappearances, and chemical attacks.
Organizations such as the Syrian Network for Human Rights have documented evidence that more than 200,000 people have been killed at Assad’s behest.
While Syria is not a signatory to the Rome Statute of the International Criminal Court, experts suggest that justice may be possible through the judicial process established by the Myanmar-Bangladesh case into atrocities against the Rohingya community.
* Opening a preliminary investigation
Heidi Dijkstal, a lawyer and nonresident senior fellow at the Atlantic Council’s Strategic Litigation Project, explained that the ICC could exercise jurisdiction over crimes in Syria if at least one element of the crime occurred in a member state.
In that case, she said, the focus would likely be on crimes that forced civilians to flee Syria and enter Jordan, an ICC member state.
These crimes include indiscriminate shelling, extrajudicial killings, arbitrary arrests, and violent suppression of freedom of expression.
Through the jurisdictional pathway established in the Myanmar and Bangladesh cases, the ICC prosecutor has the legal capacity to immediately begin investigating all criminal acts that caused Syrians to flee to Jordan, and to provide at least one avenue for justice for Syrian victims,” Dijkstal said.
The ICC prosecutor could immediately open a preliminary investigation into the situation in Syria, even without a referral from a state party, and begin examining evidence of crimes that are partly occurring in Jordan, Dijkstaal said.
* Universal jurisdiction
Legal expert Youssef Sayed Khan argued that universal jurisdiction trials in national courts currently offer the most viable path to accountability.
“While universal jurisdiction is not a universal solution, it has so far proven to be the most practical way for victims to seek justice,” said Khan, who is also a nonresident senior fellow at the Atlantic Council’s Strategic Litigation Project.
Several European countries, notably Germany, have pursued cases against Syrian officials under universal jurisdiction.
The Koblenz trial in Germany led to the conviction of a Syrian intelligence official Previously, he had been charged with crimes against humanity, and this is a prime example of this approach.
Khan explained that prosecutions at the national level have been facilitated by evidence collected by the UN’s International, Impartial and Independent Mechanism (IIIM), which compiles and prepares files to support future legal proceedings.
Khan highlighted the role of open source investigations and social media intelligence in overcoming the limited access to Syria since 2011.
“With the fall of the Assad regime, access to a robust evidentiary record has become available and will be crucial for future prosecutions, whether at the ICC, a future ad hoc tribunal, or in national courts based on universal jurisdiction,” he added.
* War crimes and crimes against humanity
Over the years, the Assad regime has been accused of committing numerous war crimes and human rights violations, and according to Khan, the UN Commission of Inquiry on Syria has documented atrocities since its first report in 2011.
He added that “this conduct includes killing, arbitrary and unlawful detention, torture and other ill-treatment, the crime against humanity of extermination, sexual and gender-based violence, forced displacement as a strategy of war, the use of chemical weapons, and the denial of humanitarian aid.”
However, with Assad in exile in Russia and many of his followers believed to be in Iran, there are many legal and political obstacles to his prosecution.
Fares Al-Rifai - Zaman Al-Wasl
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