An Investigation Mechanism for Syria The General Assembly Steps into the Breach AlexWhiting Abstract On 21 December 2016, the United Nations General Assembly took a historic step in establishing a Mechanism to investigate and preserve evidence of international crimes in Syria, the first time the Assembly has established such a body. This essay assesses the General Assembly s legal authority to create such an organ, and situates themoveinthelargerstoryoftheinternationalcriminaljusticeproject.theestablishment of the Mechanism at the same time highlights the political fragility of the justice project ç the Mechanism s creation was necessitated by the political stalemate blocking accountability for crimes in Syria ç and underscores the creativity and ingenuity in the development of institutions, cases and the law that have marked the international criminal law movement over the last decades. It seems that accountability is not for everyone. On 15 February 2011, after unrest broke out in Libya, the government of Muammar Gaddafi commenced a violent crackdown against the civilian protesters. Just 11 days later, a unanimous United Nations (UN) Security Council adopted Resolution 1970, referring the Libya situation to the International Criminal Court (ICC). 1 Within months, Gaddafi, his son and his intelligence chief were charged by the ICC with crimes against humanity. 2 Syria saw a very different international response when unrest erupted there at approximately the same time, in March 2011, also leading to a harsh government crackdown and attacks on civilians. 3 That conflict in Syria quickly Professor of Practice at Harvard Law School; Co-chair of the Editorial Committee of the Journal. [awhiting@law.harvard.edu] 1 UN Doc. S/RES/1970, 26 February 2011. 2 M. Simons, Charges of War Crimes Brought Against Qaddafi, NewYork Times, 27 June2011. 3 M. Fisher, Straightforward Answers to Basic Questions About Syria s War, New York Times, 8 September 2016.... Journal of International Criminal Justice 15 (2017), 231^237 doi:10.1093/jicj/mqx008 ß TheAuthor (2017). Published by Oxford University Press. Advance Access publication 12 April 2017 This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original work is properly cited.
232 JICJ 15 (2017), 231^237 morphed into a civil war, resulting in hundreds of thousands of casualties and massive civilian displacement over the last six years. 4 Despite significant evidence of atrocity crimes being committed by all sides to the conflict ç particularly by government forces ç the UN Security Council has been paralyzed in Syria, unable to take any steps towards accountability. In part because the coalition that supported intervention in Libya fractured when international engagement there led to regime change and then chaos in the country, and in greater part because of the different geopolitical interests at play in Syria, the UN has been unable to refer the case to the ICC (a Resolution that would have done so was vetoed by Russia and China in 2014 5 )orcreatean international tribunal to investigate and prosecute crimes in Syria. In stark contrast to Libya, nothing has happened. In addition to leaving a record of impunity and hundreds of thousands of victims without justice, this failure has also put significant pressure on the international criminal justice project: the claims of some African governments that their leaders are targeted by the ICC are (unfortunately) buttressed when the most widespread crimes occurring today are left unaddressed by the international community. On 21 December 2016, the UN General Assembly stepped into the breach, adopting Resolution 71/248 by a vote of 105 to 15 with 52 abstentions, creating the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, known in shorthand as the IIIM or the Mechanism. 6 The move was historic, marking the first time that the General Assembly has established such a body to assemble and analyse evidence of international crimes to a prosecution standard, with the benefit that the evidence could be preserved for a future tribunal. The General Assembly s action highlights both the limitations and promise of the international criminal justice project, underscoring its deeply contingent nature while at the same time reflecting the enduring power of the idea and the role of creativity and ingenuity in pushing the project forward. But first some details about what the General Assembly did and did not do. Only the Security Council has the authority under the UN Charter to establish tribunals with compulsory legal authority over individuals or states. The General Assembly cannot itself create a body that can prosecute, and so it went as far as it could within its mandate. Therefore, it established the Mechanism only to collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses for future use. 7 To accomplish this task, the General Assembly Resolution requests only voluntary cooperation, [c]all[ing] upon all States, all 4 Ibid. 5 I. Black, Russia and China Veto UN Move to Refer Syria to International Criminal Court, The Guardian,22May2014. 6 UN Doc. A/71/L.48, 21 December 2016 ( General Assembly Resolution ). 7 Ibid., at x 4.
Investigation Mechanism for Syria 233 parties to the conflict as well as civil society to cooperate fully with the Mechanism. 8 The Resolution specifically instructs the new Mechanism to closely cooperate with the Independent International Commission of Inquiry on the Syrian Arab Republic, established by the Human Rights Council on 23 August 2011. 9 A subsequent 19 January 2017 report of the Secretary- General to the General Assembly, setting forth the terms of reference of the new Mechanism, explains the difference in the purposes of the Commission of Inquiry and the Mechanism: the Commission s primary function is to collect evidence broadly of human rights violations, reporting them to the Member States, whereas the Mechanism s role will be more specific, to collect and analyse evidence identifying specific perpetrators that could support criminal prosecutions. 10 Details of how the Mechanism might work are further elaborated in the Secretary-General s report. It indicates that the Mechanism will begin by collecting evidence from groups and organizations that have already gathered materials during the last six years. 11 Reports indicate that several such groups have amassed substantial bodies of evidence. 12 The Mechanism is further empowered to conduct additional investigations itself, including interviews, witness testimony, documentation and forensic material. 13 The General Assembly Resolution further envisages that the Mechanism will analyse the collected evidence and prepare files of evidence that could be provided to national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law. 14 In this vein, the Secretary-General s report sets forth detailed procedures for the Mechanism to follow ç involving, for example, informed consent, confidentiality, and chain of custody ç to ensure that the collected materials will have evidentiary value in criminal proceedings. 15 Although opponents of the Mechanism have challenged the General Assembly s authority to establish even this type of a body, it seems clear that the UN Charter provides ample authority for the General Assembly s Resolution. During the debate on the Resolution and subsequently in a noteverbale dated 8 February 2017, the Russians complained that the General 8 Ibid., at x 6. 9 Ibid., at x 4. 10 The Secretary-General, Report of the Secretary General on the Implementation of the resolution establishing the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, UN Doc. A/71/755, 19 January 2017, at xx 30^31 ( Secretary-General Report ). 11 Ibid., at x 12. 12 See e.g. B. Taub, The Assad Files, The New Yorker, 18 April 2016 (detailing the work of the Commission for International Justice and Accountability). 13 Secretary-General Report, at x 12. 14 General Assembly Resolution, at x 4. 15 Secretary-General Report, at xx 23^29.
234 JICJ 15 (2017), 231^237 Assembly acted ultra vires ç going beyond its powers as specified in the UN Charter. 16 Specifically, the Russians complain that: A number of powers vested in the mechanism under resolution 71/248, including those of analys[ing] evidence and prepa[ing] files, are prosecutorial in nature. However, prosecutions, criminal investigations and support of criminal investigations are not among the functions of the General Assembly. It cannot create an organ that has more powers than the General Assembly itself. 17 However, the premise of this argument is incorrect, and leads to an erroneous conclusion. The powers of the Mechanism are not prosecutorial in nature in the sense that they entail the prosecution of individuals, a power that could only be conferred by the Security Council. Rather, the Resolution and Secretary General s report describe a prosecutorial body only in respect to the standards that will be adopted by the Mechanism when collecting and analysing evidence. In other words, at bottom the Mechanism is simply a fact-finding body that will adhere to a criminal law standard in performing its functions. Does the General Assembly have the authority under the UN Charter to establish such a fact-finding body? The answer to that question seems to be a quite straightforward, yes. Article 10 of the UN Charter gives the General Assembly the power to discuss and make recommendations concerning any questions or matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter. 18 Accordingly, it is within the mandate of the General Assembly to consider questions of threats to peace and security in Syria and whether a referral to the ICC or the establishment of an ad hoc tribunal is warranted. Further, Article 22 of the Charter empowers the General Assembly to establish such subsidiary organs as it deems necessary for the performance of its functions. 19 It seems plain therefore that the General Assembly could establish a subsidiary organ to collect and assess the available evidence of international crimes in Syria in order to inform the General Assembly s discussion and recommendations on these matters. It is true that the Resolution and the Secretary- General s report contemplate the use of the collected evidence beyond these specific purposes of the General Assembly, but that s a separate issue. If the General Assembly has the authority to collect and analyse the information, then there is no obvious reason to limit the other ways that information might be used. A parallel can be found in the recognized authority of the Secretary General to establish fact-finding missions and bodies. Article 99 of the Charter authorizes the Secretary-General to bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of 16 The Secretary-General, Note verbale dated 8 February 2017 from the Permanent Mission of the Russian Federation to the United Nations addressed to the Secretary General, UNDoc.A/71/793, 14 February 2017 ( Russian Note-Verbale ). 17 Ibid. 18 Art. 10 UN Charter. 19 Art. 22 UN Charter.
Investigation Mechanism for Syria 235 international peace and security. 20 Secretaries-General have consistently relied on this power, beginning with U Thant, to dispatch fact-finding missions on their own authority, a practice explicitly endorsed by the General Assembly in its 1991 Declaration on Fact-Finding by the United Nations in the Field of the Maintenance of International Peace and Security. 21 If the Secretary-General has the authority to create fact-finding missions, so should the General Assembly. Although Russia (and Syria) have persisted in their objections to the Mechanism, it is quite evident that the thrust of their opposition is political rather than genuinely legal. The need to create the Mechanism exposes the fragility of the international criminal law project, while its creation illustrates the continued power of the principle of accountability and the ingenuity in this field. Although the last decades have been marked by the remarkable establishment of institutions committed to pursuing accountability for international crimes ç starting with the ad hoc tribunals, followed by hybrid tribunals, followed by the permanent International Criminal Court ç those structures continue to lack independent legal power and remain largely dependent on political support to pursue their work. 22 To the extent the ad hoc and hybrid tribunals succeeded, it was primarily because of the sustained political support that they received. For example, both the United States and the European Union insisted on continued cooperation by Croatia and Serbia with the International Criminal Tribunal for the former Yugoslavia, allowing that court to gain access to both evidence and accused persons in those countries. 23 The scaling up of the international criminal law project from the individual tribunals to the International Criminal Court has highlighted even further this ongoing dependence on political support. The ICC is presently investigating in nine different countries at the same time: where it has strong political support either from the country of investigation or outside actors, the investigations have advanced while when that support has been lacking, the cases have stalled or collapsed. Moreover, the Court derives part of its legitimacy from the promise of eventual universality, but at present while 124 states are members of the Court, a significant number of major world powers remain outside its jurisdiction. For those countries, there will be accountability only if pursued by the country itself or if there is a political decision by the Security Council to refer the situation to the ICC or to establish an ad hoc tribunal. Which brings us back to Syria. The failure of the Security Council to act ç either through an ICC referral or the establishment of a new tribunal ç to address the crimes in Syria has gnawed at the legitimacy of the ICC. While it is 20 Art. 99 UN Charter. 21 L. Sievers and S. Daws, The Procedure of the UN Security Council (4th edn., Oxford University Press, 2014) 164^165; UN Doc. A/RES/46/59, 9 December 1991. 22 A. Cassese, Reflections on International Criminal Justice, 9 JournalofInternationalCriminal Justice (2011) 271, at 273. 23 A.Whiting, Investigations and Institutional Imperatives at the International Criminal Court, in M. Minow, C.C. True-Frost and A. Whiting (eds), The First Global Prosecutor: Promise and Constraints (University of Michigan Press, 2015) 128, at 138^139.
236 JICJ 15 (2017), 231^237 tendentious to argue that the ICC is a neo-colonialist court that targets Africa, its ability to persuade countries to submit voluntarily to its jurisdiction is certainly undermined when the Court is unable to reach massive crimes simply because they are occurring in a country protected by major world power with veto authority within the Security Council. In this context, the Mechanism is a bridge, or perhaps a temporary Band-Aid. It is a bridge to a future moment when the conditions and political will exist to provide for accountability in Syria. And in this regard, the creation of the Mechanism both preserves the possibility of a future tribunal bringing criminals to justice, by ensuring that the evidence will be collected and protected from loss or destruction, and it makes more likely that the future moment of accountability will be realized. Collecting evidence of crimes, particularly reliable evidence that can be admitted in a court and that connects specific perpetrators to atrocities, will make those crimes harder to ignore. The establishment of the Mechanism is a marker that reminds future political actors and diplomats that the crimes in Syria will not easily be forgotten or brushed aside. And the Mechanism is a temporary Band-Aid in that it momentarily forestalls criticism that the international community is doing nothing to address the crimes in Syria. As long as there continues to be movement towards universality, either in membership in the ICC or in accountability more broadly speaking, even if gradual, the international criminal justice project should hold together. In this respect, the creation of the Mechanism buys time and helps to blunt criticism, at least for now, that only the leaders of weak states will face justice when they are responsible for international crimes. Finally, the establishment of the Mechanism is yet another testament to the human determination and creativity that has kept the international criminal justice project moving forward. That project is politically fragile, and it is always hard. Even when states commit to justice in the abstract, or sign onto justice institutions, they often falter in the face of the reality of the moment, when actual justice is required. There are so many forces that push against accountability: it will disrupt the peace; it will prolong the conflict; it is impossible; it is expensive; it is backward looking rather than forward looking. In the moment, justice tends to have the weakest constituents, while the forces seeking delay or outright impunity are multiple and strong. Thus, the short history of international criminal justice, from Nuremberg to the present, is full of heroic individuals and their improbable and creative ideas that have pushed the project forward. Time and again, the idealism and determination of proponents of justice have allowed the field to exceed expectations, building institutions, developing cases, identifying perpetrators, bringing them to justice. The various tribunals and individual cases have depended for their successes on individuals willing to dream, imagine, fight, work tirelessly and pound the table, insisting on accountability. The Mechanism fits into this narrative, which does not tell the whole story of the tribunals but forms an important part of their development. Faced with a political stalemate within the international community generally and the Security Council specifically preventing any form of accountability moving forward in Syria, the proponents
Investigation Mechanism for Syria 237 of the Mechanism (Liechtenstein and Qatar, in particular), pushed forward a novel idea to keep the hope for eventual justice alive. Adopted at a time when the world has otherwise been withdrawing from international commitments, the Mechanism demonstrates the continued strength of the ideal of international justice and the force of creative solutions to move forward past the political challenges. In this respect, the Mechanism is an important development for the particular challenge it addresses, for the international criminal justice project writ large, and as a precedent for future situations.