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LYSANNE B. ROBERGE API6999 Major Research Project (MRP) Final Version Supervised by Roland Paris July 18Th, 2018 Graduate School

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LYSANNE B. ROBERGE API6999 Major Research Project (MRP) Final Version Supervised by Roland Paris July 18Th, 2018 Graduate School 0 LYSANNE B. ROBERGE API6999 Major Research Project (MRP) Final Version Supervised by Roland Paris July 18th, 2018 Graduate School of Public and International Affairs University of Ottawa 1 Seeking Justice after War An analysis of criminal mechanisms to prosecute individuals responsible for violations of international human rights and humanitarian law in Syria Abstract In most of the conflict zones today, violations of international humanitarian and human rights law occur in total impunity and without an effective response from the international community. Although a comprehensive international criminal law framework has been developed after the Nuremberg and Tokyo Trials and applied by the United Nations, it appears that this system faces major challenges in ensuring an effective application of global justice in contemporary conflicts. In Syria alone, starvation and rape slavery are used as weapons of war; civilians are deliberately and indiscriminately killed; child soldiers are being recruited and used in combat action; hospitals, schools, cultural and religious sites, as well as other civilian objects, are the targets of constant attacks; crimes against humanity, war crimes and genocide have been perpetrated by states and non-state actors. Yet, even if these crimes represent grave breaches of international law, perpetrators are left unpunished and justice is still missing. In this regard, how can the parties to the conflict be held responsible for the crimes they have committed in Syria? What options of international criminal law exist to ensure that the perpetrators of these heinous atrocities are effectively brought to justice? Ultimately, is justice achievable in Syria? Looking at the violations of international law committed by both state and non-states actors during the ongoing war in Syria, this paper will identify the means and instruments by which the international community may or may not be able to prosecute war criminals under international criminal law. Keywords Syrian Civil War; international humanitarian law; human rights; criminal responsibility; violations of international law; crimes against humanity; war crimes; United Nations; transitional justice. 2 TABLE OF CONTENTS LIST OF ACRONYMS ..................................................................................................... I INTRODUCTION........................................................................................................... III Research Methodology ................................................................................................................. v Research Limitations ................................................................................................................... vi Outline ........................................................................................................................................ vii PART. I THE SYRIAN WAR.......................................................................................... 8 Conflict Dynamics ..................................................................................................................... 11 International Displacements and the Refugee Crisis ................................................................. 16 Disastrous Consequences of the War ........................................................................................ 18 Violations of human rights and humanitarian law in Syria ....................................................... 19 Violations committed by Government Forces and pro-Government militias ........................ 20 Violations Committed by Non-State Armed Groups and the Islamic Front .......................... 24 Violations committed by Terrorist Organizations ................................................................. 26 Violations committed by Kurdish Groups ............................................................................. 29 PART II. THE APPLICABLE INTERNATIONAL LAW IN SYRIA ...................... 32 The Domestic law ...................................................................................................................... 32 The Constitution .................................................................................................................... 32 The Criminal Justice System ................................................................................................. 33 The Universal Protection of Human Rights .............................................................................. 35 The International Covenant on Civil and Political Rights, 1966 .......................................... 36 The Convention on the Rights of the Child, 1989 .................................................................. 37 Obligations of International Human Rights Law for Non-State Armed Groups ................... 38 International Humanitarian Law ................................................................................................ 40 The Four Geneva Conventions of 1949 ................................................................................. 41 Syria: a Non-International Armed Conflict ........................................................................... 41 3 The Legal Status of Non-State Armed Groups Party to a NIAC............................................ 43 Customary International Law .................................................................................................... 44 Jus Cogens Norms of International Criminal Law ................................................................ 46 PART III. SEEKING JUSTICE AFTER WAR – AN EVALUATION OF OPTIONS FOR POST-CONFLICT JUSTICE IN SYRIA ........................................................... 48 Syrian Domestic Courts ............................................................................................................. 50 Non-Judicial Initiative: The Independent International Commission of Inquiry on the Syrian Arab Republic ........................................................................................................................ 53 The International Criminal Court (ICC) .................................................................................... 54 Non-Judicial Initiative: The International, Impartial and Independent Mechanism .............. 59 A Hybrid Tribunal for Syria ...................................................................................................... 60 Universal Jurisdiction ................................................................................................................ 67 PART IV. CONCLUSIONS AND RECOMMENDATIONS ..................................... 72 Conclusion on Proposed Mechanisms: Is Justice Achievable in Syria?.................................... 73 Moving Forward: the Need to Change ...................................................................................... 76 ANNEX ............................................................................................................................ 79 Map of the Syrian Arab Republic .............................................................................................. 79 BIBLIOGRAPHY ........................................................................................................... 80 i List of Acronyms APII Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CIL Customary International Law COI (Syria) Independent International Commission of Inquiry on the Syrian Arab Republic CRC Convention on the Rights of the Child ECCC Extraordinary Chambers in the Courts of Cambodia FSA Free Syrian Army HRC Human Rights Council ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICL International Criminal Law ICRC International Committee of the Red Cross IDP Internally Displaced Person IHL International Humanitarian Law IIIM International, Impartial and Independent Mechanism INGO International Non-Governmental Organization ISIS Islamic State of Iraq and Al-Sham OHCHR Office of the United Nations High Commissioner for Human Rights SDF Syrian Democratic Forces SNHR Syrian Network for Human Rights SSSC Supreme State Security Court UDHR Universal Declaration of Human Rights ii UNGA United Nations General Assembly UNSC United Nations Security Council YPG Popular Protection Units iii INTRODUCTION The Syrian conflict has become one of the worst humanitarian crises of the past 50 years. According to the latest data published by the Syrian Observatory for Human Rights in March 2018, at least 511,000 people had been killed in the war since it began seven years ago.1 An estimated 11 million have fled their homes, of which 4.8 million have gone to Turkey, Lebanon, Jordan, Egypt and Iraq, and another 6.6 million are currently internally displaced within Syria.2 The main reason for these alarming displacements is obviously the extreme violence perpetrated by all parties to the conflict against the civilian population. In fact, countless reports from the United Nations (UN), non-governmental organizations and research institutes found government forces, non-state armed groups, terrorist organizations and Kurdish groups guilty of war crimes, crimes against humanity and genocide. While the international community stands by, most of these horrible crimes go unpunished and their perpetrators
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