7 Complex Legal Issues SJAC Has Addressed in its Data Analysis
A screenshot of SJAC’s database, Corroborator. SJAC’s Data Analysis team tags, labels, links, and writes descriptions for each actor and piece of documentation in the database according to international standards. The database functions in both English and Arabic.
SJAC aims to achieve meaningful justice for Syria. To contribute to this goal, SJAC activities are designed to produce a complete repository of comprehensive, high-quality, and usable documentation that is prepared to feed into justice mechanisms, both in current court cases in Europe and for future transitional justice processes.
As was highlighted recently on NPR, given the large volume of documentation emerging from Syria, creating a usable and searchable repository requires large investments in tech and big data tools. But even the best tools cannot completely replace manual analysis. SJAC’s team of Data Analysts (DAs) work tirelessly to tag, label, and link documentation and actors, enabling the creation of case files and investigations into specific events.*
Not all of the documentation that the DAs encounter is straightforward, however, and over the past three years of work, the team has had to sort through complex legal and methodological questions. The following are some of the issues that have come up, due to the complicated and multi-faceted nature of the Syrian conflict.
*Please note that the tags and labels are not intended to definitively determine whether a war crime occurred, but to simply sort incidents according to possible violations and responsible parties. Some documented incidents may be completely legitimate under international law.
Case #1: Access to medical care. A man had a heart attack and was being transported to the hospital. On the way, government forces stopped the ambulance at a checkpoint and prevented it from passing. The man died as a result. Should we label this incident as a killing and tag government forces as the alleged perpetrators?
Under international humanitarian law (IHL), medical units must be able to transport the sick and wounded, and according to human rights law, the government’s action potentially violates a person’s right to medical care and freedom of movement. The specific facts of the case would determine whether IHL or human rights law applies in this situation. Although SJAC has labels for most IHL violations, the breadth of human rights law makes it difficult to include every type of human rights violation in our label tree. Thus, we decided to create a label called “indirect injury/death” and tag the government as the “alleged perpetrator.” Details about the incident are then explained in the description field of the actor profile.
Case #2: Stillbirths. After a pregnant woman sustained an injury during nearby clashes, she had a miscarriage and the fetus was stillborn. The woman survived. Should we create an actor profile for the fetus and label the incident as a “killing”?
Under international human rights law, rights do not attach to an individual until birth, so it is not possible to violate the rights of a fetus. Even though Syrian domestic law takes a different approach, we decided to remain consistent and use international law as the standard. As a result, we did not create a new actor profile for the fetus. Instead, we added a label called “stillbirth” and tagged the mother’s profile with this label.
Case #3: Media Activists. A media activist was shot while covering clashes between the Free Syrian Army and government forces. The source indicates that the activist was with one of the armed groups at the time. How should we label this person’s actor profile?
Under IHL, journalists receive protection during conflict. The same is true for journalists who are embedded with one of the armed forces to cover fighting on the battlefield. The protection, however, ends if the journalist takes part in hostilities. It is often difficult to know from the information we receive whether the media activist was primarily occupied as a journalist, is a member of the armed group, or is simply covering the clashes for social media on his or her free time. We decided to treat all media activists as civilians unless there is reason to believe otherwise, but we only use the label “journalist” if there is information that the actor is a professional reporter or correspondent.
Case #4: Courts of Armed Groups. New courts have been filling the justice vacuum in opposition-controlled areas. Although the judges of the courts are not directly involved in the fighting, they are often affiliated with armed groups and issue orders near the battlefield to arrest, sentence, and execute people captured by the armed group. Should the judges that issue these orders be labeled as a “civilian” or “combatant”?
This is a very complicated issue. When we came across similar incidents for the first time, we knew we would use the labels “detention” and “summary execution” for the incident, but we were not sure how to tag the alleged perpetrator. Even though the judges are affiliated with armed groups, they are not combatants unless they wield arms on the battlefield.. Thus, we label the judges as “civilian,” but tag the affiliated armed group as “alleged perpetrator.” Note that a recent Swedish court recently ruled on whether such arrests and executions constitute war crimes, narrowly limiting the legitimacy of these courts; however, its decision was criticized by some legal scholars.
Case #5: Forced Conscription. In Syria, there is compulsory military service for all men, with some exceptions. Facing a shortage of fighters since the conflict has intensified, the government has been detaining unenlisted men and ordering them to fight, even if they claim to have an exemption or already have completed their service. Should we label these incidents as “forced conscription”?
As a sovereign state, Syria has the right to conscript soldiers to serve in its armed forces in accordance with its domestic law, so, unlike opposition forces, the Syrian government cannot be accused of forced conscription. Instead, we assess if there was a due process violation since, even under Syrian domestic law, the detained individual should have the opportunity to challenge the basis for the conscription. There have been allegations that the government is simply detaining men, regardless of the individual’s exemptions, punishing them through torture tactics, and then sending them to the battlefield. If our data indicates that these types of tactics were used, we label the incident as a “detention” and add a torture label. Otherwise, we do not add any labels.
Case #6: Indiscriminate Attacks. Thermobaric bombs use oxygen from the surrounding air to create an intense, hot explosion. It is not illegal to produce or use this type of weapon, but in the Syrian war, there have been reports that thermobaric bombs have been dropped in civilian areas. Should we label these incidents as indiscriminate attacks?
Tagging weapons poses one of the biggest challenges for the DA team. It is often difficult to identify types of weapons from a video without help from experts. As a result, we must rely on information from the source unless we have reason to doubt the source’s veracity.
Prohibited weapons are automatically tagged, but some weapons are legal and only become illegal by how they are used on the battlefield. Our team was not familiar with thermobaric weapons the first time it appeared in our data. After considerable research, we learned that the bomb is targeted but causes extensive damage beyond the strike point and cannot be used in a limited way to prevent excessive collateral damage. Thus, when there is information that the bomb was used in a populated civilian area, we tag the incident as indiscriminate, and we created a new label under the “weapons” tree called “volumetric weapons” for this type of bomb.
Case #7: Human Shield. A government officer forces a a man to load his car with missiles and munitions to transport from one town to another. On the way, the opposition attacks the car and the man dies as a result. Is this a case of using a human shield? Which of the two parties is responsible for his death?
Even though this situation is a bit different from usual human shield incidents, whereby the perpetrator physically puts the civilian in between the shooting to deter attacks, we decided to classify this case as “using a human shield” because the government intentionally put a civilian in a dangerous situation in order to prevent its weapons supply from being confiscated. We labeled both the opposition force and the government as “alleged perpetrators” and explained the situation in detail in the description field.
For more information or to provide feedback, please contact SJAC at [email protected].