GENEVA/NEW YORK, March 29 - U.N. officials have compiled a list of Syrian figures suspected of crimes against humanity in the uprising against President Bashar al-Assad, but opposition from Russia and China means the accused are unlikely to appear in the dock at the international war crimes court any time soon.
As world powers press for an end to the violence that has racked Syria and claimed thousands of lives, pressure is building over accusations that Assad’s security apparatus has committed crimes in suppressing the year-long revolt.
Syrian government forces have been accused in a U.N. report of committing widespread, systematic and gross human rights violations amounting to crimes against humanity. There was also evidence of abuse by some rebel groups, it said last month.
A U.N. Commission of Inquiry on Syria has handed over a confidential list of senior Syrian officials suspected of ordering crimes against humanity including murder, abductions and torture to the United Nations for possible prosecution - whether by an international court, or national bodies using universal jurisdiction, or even a Syrian court in future.
But in the case of Syria, the International Criminal Court - the world’s first permanent war crimes court - is powerless for the time being. The ICC has no reach there because Syria is not a state party to the Rome Statute, and because the United Nations Security Council is deadlocked over the issue.
“If the Security Council provides a decision (that) we should investigate Syria, we will do it,” ICC prosecutor Luis Moreno-Ocampo said earlier this month. “We are always able.”
But Moscow and Beijing have stone-walled in the Council.
“The Security Council can bring a case, but China and Russia are unlikely to agree so that the chances are slim at the moment,” said Louise Doswald-Beck, professor of law at Geneva’s Graduate Institute of International and Development Studies.
“But there is a possibility (of arrest and prosecution) if these people were rash enough to travel to states that can try people for war crimes and crimes against humanity.”
The office of the ICC prosecutor has an information and evidence unit which can receive evidence submitted by members of the public or official bodies: so, for example, evidence from Syria could be submitted to the unit and held there in case an official investigation does go ahead.
But the office’s representatives refuse to say whether they have received any evidence about war crimes in Syria.
U.N. officials have supported an investigation.
“I endorse the call by (U.N. High Commissioner for Human Rights Navi Pillay) to have the International Criminal Court investigate whether these amount to crimes against humanity,” Juan Mendez, U.N. special rapporteur, or investigator, on torture worldwide, said in an interview.
The United Nations estimates Syrian forces killed at least 9,000 people over the past year as Assad’s forces pounded rebel strongholds into submission. The government says opposition fighters killed 3,000 soldiers and security forces personnel.
The Hague-based ICC, which has investigated several cases involving alleged war crimes over the past decade, earlier this month handed down its first-ever ruling when it found Congolese warlord Thomas Lubanga Dyilo guilty of using child soldiers in the Democratic Republic of Congo.
But so far it has missed the chance to try some of the biggest names suspected of genocide or crimes against humanity. Sudanese President Omar Hassan al-Bashir, wanted on charges of orchestrating genocide, remains at large.
Last year, the ICC issued arrest warrants for Libya’s former ruler Muammar Gaddafi, his son Saif al-Islam, and his spy chief, Abdullah al-Senussi, following a referral by the U.N. Security Council. Gaddafi was killed by rebel forces, Saif is in prison in Libya, while Senussi was recently detained in Mauritania: it remains unclear whether either of them will appear in The Hague.
With Syria, Moscow and Beijing have shielded Assad from U.N. Security Council condemnation by vetoing two Western-backed resolutions over the bloodshed, but they approved a Security Council statement on March 21 endorsing U.N.-Arab League envoy Kofi Annan’s bid to end the violence in Syria.
Legal experts such as Doswald-Beck say one possible chink in the case of Syria is if any of those involved in war crimes were to leave the country and travel to another jurisdiction which could try them - provided it can be shown that these individuals ordered a direct attack on civilians or torture.
“As they are probably all Syrian nationals, it would be only on the basis of universal jurisdiction that you could try them,” she said.
“If these people choose to travel and they arrive in a state party to the Convention against Torture, they need to be brought to justice. As long as they are sitting in Syria and don’t move, that’s where the problem lies.”
There is a back-door avenue for getting an ICC case going. One human rights expert told Reuters privately it is possible for an ICC member state to refer the Syrian case to the court, which would allow the prosecutor to look into the situation there. If the prosecutor found dual-nationality suspects with passports from ICC members, those individuals could theoretically be indicted.
Assad’s wife, Asma, for example, holds a British passport and could be indicted if the ICC ever suspected she was linked to war crimes. But this approach would not apply to her husband, nor is it clear it would apply to anyone on the secret list.
The U.N. Commission of Inquiry on Syria’s secret list of suspects is believed to include Assad’s inner circle and senior officials of the Baath party, army and security forces.
“The Commission of Inquiry handed me a list of names of people in high positions, including in the military and security forces, who have been implicated in the most serious international crimes that fall under the jurisdiction laid down in the Rome Statute,” U.N. High Commissioner for Human Rights Pillay told Reuters in Geneva, referring to the treaty setting up the ICC.
“I will hand over this list of alleged perpetrators to any future credible investigations,” said Pillay, a former ICC judge.
In its February report, a three-member panel, headed by Brazilian expert Paulo Pinheiro, said that Syrian forces bent on crushing the uprising had shot dead unarmed women and children, shelled residential areas and tortured wounded protesters in hospital under orders from the “highest level” of army and government officials.
“The commission also identified particular army units, security agencies and their branch offices for which there are reasonable grounds to believe that they carried out gross human rights violations,” the report said.
There was also evidence of abuses committed by some rebel Free Syrian Army (FSA) groups.
The U.N. report said it had reliable accounts that the National Security Bureau of the Baath Party National Command was used to translate policy directives into strategic operations.
Military and security forces, civilian authorities and Baath Party officials coordinated operations through local security committees, it said.
“On several occasions, senior security officials were deployed from the capital to coordinate operations involving crimes against humanity and other gross violations,” it said.
“Most crimes against humanity and gross human rights violations were carried out in complex operations that involved the entire security apparatus and therefore would have required superior directives.”
The four major intelligence and security agencies with direct reporting lines to the president’s office - military intelligence, air force intelligence, the general intelligence directorate and the political security directorate - “were at the heart of almost all operations”, it said.
As the conflict evolved, elite army units closest to the leadership - the Special Forces, the Republican Guard and the Fourth Division - played an increasingly prominent role, the latter two especially in Damascus and its suburbs, it said.
“You would expect from the institutions named in the report, that the key people in those institutions to be on the list, there are enough hints,” said one international human rights expert who has not seen the list, but who saw the public report.
For the Commission of Inquiry to have included it, it is likely to be all corroborated evidence, but it still needs to be proved in a court of law, this expert said.
“The investigators would look at his close circle, the constitutional order, the ministers of defense, of interior, head of security services. You start with a matrix and corroborate evidence from witnesses, these are the criteria.”
The existence of the list creates pressure on states to take action as it means that dozens of people can be brought to justice, once a credible jurisdiction is empowered to move on the case, said Mona Rishmawi, chief of the rule of law branch at the office of the U.N. High Commissioner for Human Rights.
Several countries, including Britain, Belgium, Canada, Spain and the United States, have established universal jurisdiction for some crimes such as torture, said Rishmawi, who led a similar U.N. investigation in Darfur which contributed evidence leading to the ICC’s indictment of Sudan’s President Bashir.
Aside from the U.N. report, there is other evidence that could be used to mount a case, legal experts said
U.N. special rapporteur Mendez said that a Channel 4 video purporting to show Syrian patients being tortured in hospital appeared to support increasingly grave allegations pointing to crimes against humanity.
“With respect of torture, as grave as the allegations were six to eight months ago, this latest seems a step or two above that,” Mendez, himself a victim of torture while jailed by the military dictatorship in his native Argentina in the 1970s, said in an interview in Geneva.
“There’s a limit to what I can do. I have to say that I am frustrated that I cannot do more. I wish I had more powers.”
Additional reporting by Sara Webb, writing by Sara Webb and editing by Peter Millership