The UN has established a new mechanism to assist in the investigation and prosecution of individuals responsible for war crimes, crimes against humanity and genocide as well as other breaches of international law in the conflict in Syria since 2011.
A range of organisations including Human Rights Watch and the UN Office of the High Commissioner for Human Rights, have definitively recorded that war crimes, crimes against humanity and genocide are being perpetrated by a range of belligerent groups in Iraq and Syria. Da’esh continues to perpetrate sexual violence as war crimes, crimes against humanity and genocide.
The conflicts in Iraq and Syria represent a unique moment for international justice, especially for gendered crimes like sexual violence. In the past, the Security Council has noted 'that only limited numbers of perpetrators of sexual violence have been brought to justice'. More recently, in resolution 2106, it called on member states 'to comply with their relevant obligations to continue to fight impunity by investigating and prosecuting those subject to their jurisdiction who are responsible for such crimes'. Historically, conflict-related sexual violence has occurred in jurisdictions of other sovereign states, perpetrated by the nationals of those states. But well over 30,000 foreign fighters have travelled to Iraq and Syria to fight with Da’esh and other extremist groups. A vast number of those individuals come from countries where war crimes, crimes against humanity, and genocide are outlawed under domestic criminal legislation.
Despite this, a key barrier to prosecution for these crimes is access to evidence of specific crimes, perpetrated by specific individuals, half way around the world, in the middle of a war zone. That very problem is the one that the new mechanism has been established to help overcome. Unlike the UN Independent Commission of Inquiry in Syria, it will establish the connection between the crime 'and the persons responsible, directly or indirectly'.
The ‘International, Impartial and Independent Mechanism to sssist 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’, or IIIM, has two key tasks:
- to collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses; and
- to prepare files in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law.
While the IIIM can only be successful in these tasks if it is given appropriate resourcing and access, its establishment is a positive step for international justice. Australia has pledged a very small contribution to the anticipated $US4million-$6 million required during the setup phase. It is estimated that by the time evidence is gathered and sorted according to access requirements across a range of jurisdictions, long term management of data and assistance to individual investigations and prosecutions will make for a relatively costly project.
The specialisations sought in the secretariat include digital forensics, gender based violence, children’s rights, witness and victim protection, criminal investigation and prosecution. It will use state of the art forensic and data management technology to gather, store and share evidence between necessary jurisdictions that meet human rights standards of a fair trial for the investigation and prosecution of individual cases in domestic courts.
While many have pinned their hopes on the International Criminal Court, that institution was established as a last resort. It can only pursue cases when states parties are unwilling and unable to do so themselves. Conversely, the principle of complementarity in the Rome Statute obliges states parties who are willing and able to investigate and prosecute those who have perpetrated war crimes, crimes against humanity and genocide within their own legal systems.
The terms of reference for the IIIM reinforce this principle, reminding us that under international law, the primary burden rests with states to investigate 'violations of international humanitarian law and international crimes, to prosecute those responsible and to ensure that victims have access to an adequate and effective remedy for such violations as well as full redress and guarantees of non-recurrence'. Australia and a large number of like-minded countries including Britain, Ireland, Canada and The Netherlands all have the domestic legislation and judicial system required to undertake these investigations and prosecutions.
The IIIM is not the be all and end all of international justice; it is not a panacea. Its tasks are very specific. Nation states now have to step up to the plate. They need to implement their own legislation; commit to undertaking the investigations (with the evidence and assistance of the IIIM); and ultimately prosecute individual perpetrators within their national jurisdiction. Only if all those actions are undertaken will the establishment of the IIIM have the desired consequences.