Gruesome images of atrocities committed in Syria have so shocked the world that, in March 2011, the UN General Assembly set up the International Impartial and Independent Mechanism (IIIM) to assist in investigating and prosecuting those responsible for the most serious crimes under international law.
These are generally understood to be acts of genocide, crimes against humanity, and war crimes. International support for the IIIM gained traction after the reported confirmation that chemical weapons had been used in Syria.
However, with hope still lingering for an all-inclusive political solution for Syria, the push to bring individual war criminals to account seems to have lost impetus, with countries involved in diplomatic efforts fearing that prosecutions might derail the peace process and perpetuate the conflict.
Besides, why should perpetrators of atrocities in Syria be deterred by the prospect of being punished? After all, those sought by the International Criminal Court (ICC) for similar sins in Darfur, Sudan, have yet to be apprehended. The ICC has no jurisdiction over Syria until the UN Security Council refers a case to the ICC, and such referral is impossible without the unanimous agreement of the council’s five permanent members, some of whom would certainly veto any such move. Setting up an ad hoc international criminal tribunal, like the one for the former Yugoslavia or for Rwanda, is not a realistic option in light of such a veto in the Security Council.
Nation states can resort to international agreements binding them to either extradite those accused of any offence covered by the agreements, or prosecute the suspects in their own domestic courts. Most of these agreements concern acts of international terrorism while the rest cover acts of torture, enforced disappearance, and serious war crimes known as “grave breaches”. The existing agreements do not cover acts of genocide, most crimes against humanity, or most war crimes, however.
To close these impunity loopholes, a group of countries led by Argentina, Belgium, the Netherlands and Slovenia are seeking to supplement supranational justice with a new international agreement on mutual legal assistance to help domestic investigations of suspects and their prosecution in cases of major international crime. Reaching this agreement will take several years, if it can be done at all.
All hope is not lost though: signs are that a worldwide framework to extradite and prosecute perpetrators of the most serious international crimes is crystallising around existing legal obligations and practice.
Two elements can impede justice here. First, heads of state, government leaders and foreign ministers have immunity from prosecution in foreign courts so long as they remain in office. Therefore, these officeholders are usually motivated to “fight to the death” rather than peacefully cede power, unless a deal is struck to grant them amnesty for their past wrongs. Second, a nation may opt for national reconciliation instead of mass prosecution of hundreds of thousands who have committed acts of atrocity against their compatriots – as in the case of post-apartheid South Africa’s Truth and Reconciliation Commission.
Truth commissions are normally entrusted with investigating and documenting atrocities, identifying their perpetrators and holding them publicly accountable, providing redress to victims, and making recommendations for reform including establishing a mechanism to ensure accountability for future atrocities. Yet, the work of some truth commissions, such as in Argentina, Chile, and Peru, facilitated national prosecution of perpetrators. In Colombia, the Integral System of Truth, Reparations, Justice, and Non- repetition under the 2016 peace accord includes a commission entrusted with examining the broader collective truth of what happened, and why, during the decades of armed conflict. The process offers no amnesty for crimes against humanity, war crimes, genocide, or serious violations of human rights such as extrajudicial executions, forced disappearances, torture, sexual violence, forced displacements, and recruiting child soldiers. While an amnesty may be granted for rebellion and related political crimes, the victims’ right to compensation remains intact.
The Colombian approach seems to be fairly balanced and should be emulated elsewhere. Above all, there can be no “impunity” for perpetrators of international crimes, especially those in positions of leadership.
Kriangsak Kittichaisaree is a judge of the International Tribunal for the Law of the Sea, former chairman of the United Nations International Law Commission Working Group on the Obligation to Extradite or Prosecute, and the author of “The Obligation to Extradite or Prosecute”.