The Commission of Inquiry and the Due Process of Justice in Syria

(Members of the UN Commission of Inquiry on Syria ; Martial Trezzini / EPA)

In late February, the United Nations’ Independent International Commission of Inquiry on Syria (COI-Syria), released its latest report detailing the pervasive and “exponentially” increasing atrocities committed by all parties in the Syrian conflict. While the report sought to mobilize the international community to act against crimes in Syria that “shock the conscience of humanity,” the COI also threatened to publish the names of approximately 200 regime, extremist, and opposition figures suspected of committing war crimes and crimes against humanity in the course of the four-year-long conflict. The warning — issued prior to the UN Human Rights Council’s upcoming March meeting — reverses the long-standing policy of COIs to withhold the names of suspects until after they are indicted. It also raises significant concerns for the justice and accountability process in Syria.

In comments made marking the release of the report, commission chair Paulo Sérgio Pinheiro criticized the international community for its failure to uphold and protect the rights of the Syrian people:

“It is unconscionable that Syrians should continue to suffer as they have for the last four years and … live in a world where only limited attempts have been made to return Syria to peace, and to seek justice for the victims.”

Pinheiro contended that releasing the list of names, comprised of “military and security commanders, the heads of detention facilities, and commanders of non-state armed groups,” would serve to put “alleged perpetrators on notice, maximize the potential deterrent effect” of the COI, and protect those most at risk of additional abuse. Moreover, the COI-Syria maintained that not publishing the names of alleged abusers “at this juncture of the investigation” would only “reinforce the impunity that the commission was mandated to combat.”

However, the likelihood that such an announcement would act as a deterrent against additional abuses — or shame the international community into acting — is overstated for several reasons, chief among them Russian influence.  Russia and China have already blocked a resolution referring Syria to the International Criminal Court (ICC) and would likely do so again if the COI’s release of names is designed to advance the prosecution of war criminals at an international or hybrid tribunal. Furthermore, international criminal tribunals cannot by themselves stop the worsening violence in Syria, and their weak enforcement powers are often ineffective to sanction individuals accused of war crimes. As such, suspected perpetrators may remain in Syria indefinitely, far beyond the reaches of international justice or punishment.

Worse yet, releasing suspects’ names without the existence of established mechanisms for prosecuting violators could further destabilize the justice and accountability process in Syria. With no way to verify these allegations in a court of law, publishing a list of suspected war criminals would deprive the accused of their rights to due process and amount to an attribution of guilt without trial. In addition, publicly disseminating the lists of names would exacerbate already prevalent reprisals and retributions amongst the different factions and facilitate the expansion of what is, in essence, vigilante justice in Syria.

Rather than release the names of suspects in a public forum, the COI-Syria should continue to document crimes committed by all parties in the Syrian conflict and privately coordinate policy vis-à-vis alleged war criminals with foreign governments, the UNSC, the ICC, and other relevant institutions. The COI-Syria may also collaborate with willing countries to pursue universal jurisdiction prosecutions of alleged Syrian war criminals.

While the Syria Justice and Accountability Centre (SJAC) understands the COI’s desire to maximize their documentation’s potential contributions to justice and accountability mechanisms and ending the bloodshed, SJAC cautions for a balanced and measured approach to the nascent transitional justice process. In order to provide impartial and unbiased justice for all parties in the Syrian conflict , allegations of misconduct must be accompanied by a formal investigative process. Otherwise, publishing a list of alleged war criminals, as the COI-Syria has threatened to do, will lead to violations of due process and the possibility of violent retributions — mitigating these negative outcomes should be a priority for the international community.

For more information and to provide feedback please email SJAC at [email protected].