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International Crimes in Syria: Options for Accountability and Prosecution

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UNIVERSITY OF MILAN “SCUOLA DI SCIENZE DELLA MEDIAZIONE LINGUISTICA E CULTURALE” Master Degree in Languages and Cultures for International Communication and Cooperation (LM-38) INTERNATIONAL CRIMES IN SYRIA: OPTIONS FOR ACCOUNTABILITY AND PROSECUTION Thesis in International Humanitarian Law Supervisor: Prof. Christian Ponti Co-supervisor: Prof. Giovanni Parigi Master thesis of Samantha Falciatori Student number: 860972 Academic year 2015-2016 To those who have given their lives for a dream of freedom. To those who are still here, but carry grief in their heart. To Saeed, Akram, Mazen, Ahmad. To all my Syrian friends who have brought so much in my life. To those who have shared these painful years with me. ABSTRACT IN ITALIANO Dopo anni di atrocità, solo perseguibilità dei crimini e giustizia potranno ricucire la società siriana, aprendo la strada alla riconciliazione e alla pace. Lo scopo di questa tesi è cercare di capire come ciò sarà possibile, avvalendosi degli strumenti del diritto internazionale umanitario da un lato e del diritto internazionale penale dall’altro. La tesi può infatti essere divisa in due parti: la prima analizza le principali fattispecie criminose dei crimini internazionali commessi in Siria da tutte le parti in conflitto; la seconda esplora criticamente quali sono i possibili meccanismi di repressione di tali crimini. La tesi si articola in sei capitoli: il primo offre una panoramica sulla situazione siriana prima del 2011, sulle radici della rivolta e sulle fasi e gli attori del conflitto; il secondo cerca di dare una classificazione giuridica al conflitto armato siriano per capire quali fonti del diritto si applicano; il terzo analizza i crimini di guerra, in particolare quelli contro gli individui, quelli con metodi illeciti e quelli con mezzi proibiti, concentrandosi sulle fattispecie principali; il quarto si concentra sui crimini contro l’umanità, tra cui lo sterminio messo in relazione con il genocidio, sul quale vengono avanzate delle ipotesi che ne mettono in luce problematiche e limiti; il quinto si occupa della tortura di Stato e del “caso Caesar”, le 45.000 foto di civili torturati a morte trafugate da un disertore della polizia militare. Si tratta di prove di quella che l’ONU ha definito “una politica di Stato di sterminio della popolazione civile”. Il sesto capitolo, infine, analizza come siano in preparazione file e dossier per futuri processi, quali sono i possibili meccanismi per processare i responsabili, anche alla luce delle esperienze passate, e quali quelli già attivati. A questa tesi ha contribuito la ricerca tesi svolta in Olanda durante un soggiorno Erasmus di 11 mesi tra il 2015 e il 2016, in particolare interviste e colloqui avuti con esperti di diritto internazionale, investigatori del Tribunale penale internazionale per l’ex Yugoslavia, della Corte penale internazionale, di Amnesty International e con numerosi testimoni siriani. Alla tesi è infatti allegata un’Appendice che raccoglie alcune delle testimonianze più significative: quella di un disertore dell’esercito siriano di Damasco; quella di uno studente di Aleppo arrestato quattro volte dal regime; quella di un medico di Aleppo torturato per aver curato anche i manifestanti; quella di un volontario della Mezza Luna Rossa, testimone oculare del massacro di Banyas analizzato nel capitolo IV, quella di Mazen Alhummada, torturato per un anno e sette mesi nel complesso di Mezzeh dove sono state scattate le foto del caso Caesar; quella di Garance Le Caisne, giornalista freelance francese che ad oggi è l’unica ad aver intervistato Caesar; quella di Almudena Bernabeu, avvocatessa spagnola oggi impegnata in un ricorso legale in Spagna contro il regime siriano per il crimine di terrorismo di Stato. Il dibattito sull’applicabilità dei meccanismi di repressione dei crimini internazionali al caso siriano è aperto e lo scopo di questa tesi è dimostrare che, nonostante le difficoltà politiche e nonostante il conflitto sia ancora in corso, esistono degli strumenti nel diritto internazionale che permettono di avviare sin d’ora processi di giustizia transizionale, a cominciare dal principio di giurisdizione universale, alla base di numerosi processi già avviati in Europa, ma non solo. Esplorare questi strumenti, dopo aver ricostruito i vari crimini e averli inquadrati nel contesto storico-sociale del conflitto, è il fulcro del presente lavoro. Perché fare giustizia è forse l’unico modo per pacificare le insanguinate terre siriane. TABLE OF CONTENTS Pag. INTRODUCTION 6 CHAPTER I SYRIA FROM THE ASSADS TO THE REVOLUTION 10 1.1 Ethnicity and religion: the mosaic of Syrian society. 10 1.2 1920-1946: the French mandate. 11 1.3 1946-1970: from the independence to the Baath rise. 11 1.3.1. The instability of post-mandate Syria. 11 1.3.2. Political and ideological structure of the Baath party. 12 1.4 1970-2001: the Syria of the Assads, under Hafez. 13 1.4.1. Structure and methods of the Syrian regime. 13 1.4.2. The Muslim Brotherhood and the Hama massacre. 15 1.5 2001-2011: the Syria of the Assads, under Bashar. 17 1.5.1. Bashar al Assad comes to power. 17 1.5.2. The “Damascus Spring”. 18 1.5.3. The new oligarchy. 19 1.6 2011: between revolution, repression and war. 20 1.6.1. The roots of the uprising. 20 1.6.2. March 2011: the torture of the children of Deraa and the outbreak of the revolution. 21 1.6.3. The reaction of the Syrian government. 23 1.6.4. The reaction of the international community. 25 1.6.5. Civil war: the radicalisation of the uprising. 26 1.6.6. Proxy war. 26 1.7 The actors on the ground. 27 1.7.1. The opposition front: the “Syrian rebels”. 27 1.7.2. The Kurdish YPG and the Syrian Democratic Forces. 29 1.7.3. The International Coalition against ISIS. 29 1.7.4. ISIS (or Daesh). 30 1.7.5. The government and pro-government forces front. 30 CHAPTER II THE TYPOLOGY OF THE ARMED CONFLICT IN SYRIA 34 2.1. The legal classification of the conflict. 34 2.2. “Mixed” armed conflicts. 36 2.3. The implications of the legal classification of the conflict. 39 2.4. Sources of IHL and conventions ratified by Syria. 40 2.5. Civilian casualties and responsible parties: the numbers of the Syrian case. 45 CHAPTER III WAR CRIMES IN SYRIA 48 3.1 Notion of war crime: material and mental elements. 48 3.2. War crimes against individuals. 49 3.2.1. Wilful killings and summary executions. 49 3.2.2. Rape and sexual violence. 52 3.2.3. Hostage-taking and kidnappings. 55 3.2.4. Unlawful deportation or transfer of the civilian population. 56 3.3. War crimes related to illegal methods of warfare. 57 3.3.1. Indiscriminate attacks and attacks against the civilian population. 57 3.3.2. Attacks against hospitals and medical facilities. 60 3.3.3. Terrorist attacks. 63 3.3.4. Siege and starvation as a weapon of war. 64 3.3.5. Attacks against humanitarian missions. 66 3.4. War crimes related to the use of prohibited means of warfare. 68 3.4.1. Cluster munitions. 68 3.4.2. Incendiary bombs: white phosphorus and napalm. 69 3.4.3. Barrel bombs. 71 3.4.4. Chemical weapons: Sarin and the Ghouta attack. 72 3.4.5. Chlorine bombs. 75 CHAPTER IV CRIMES AGAINST HUMANITY AND GENOCIDE IN SYRIA 78 4.1. Notion of crime against humanity: material and mental elements. 78 4.1.1. Illegal detention and enforced disappearance. 79 4.1.2. Rape as a weapon of war and method of torture. 82 4.1.2.1. Mass rape: the case of Homs. 83 4.1.2.2. Rapes in detention centres. 83 4.1.3. Sexual slavery. 86 4.1.4. The forcible displacement of the civilian population and ethnic cleansing. 88 4.1.4.1. The case of the Damascus suburbs. 89 4.1.4.2. The case of Aleppo. 90 4.1.5. Extermination. 91 4.1.5.1. Homs: the Houla massacre. 93 4.1.6. Persecution. 95 4.2. Notion of genocide: material and mental elements. 97 4.2.1. Genocide in Syria: hypotheses and problems. 98 4.2.2. Ethnic cleansing as hypotheses of genocide. 100 4.2.3. Hypotheses of genocide: the Banyas case. 101 4.2.4. ISIS and the Yazidi genocide. 105 CHAPTER V STATE-SANCTIONED TORTURE IN SYRIA: THE “CAESAR CASE” 107 5.1. Crime of torture: juridical profile. 107 5.2. State-sanctioned torture: purpose, phenomenology and training. 109 5.3. “Torture Archipelago”. 111 5.3.1. Structure and training of the secret services: the “Nazi of Damascus”. 111 5.3.2. Detention centres and military prisons: the case of Sednaya. 113 5.3.3. Overview of torture methods. 114 5.3.4. The voice of the victims. 115 5.3.5. The voice of the torturers. 120 5.4. “They torture to kill”: the evolution of torture in Syria. 122 5.5. “The death machine”: detention centres and military hospitals. 123 5.5.1. The complex of Mezzeh, Damascus: between torture and killings. 124 5.5.2. Sukhra and forced labour. 126 5.6. The “Caesar case”. 127 5.6.1. Genesis of the “Caesar dossier”. 128 5.6.2. Authenticity of the photos and identity of the victims. 131 5.6.3. Why they photograph their own crimes. 133 5.7. Hospitals as torture centres and medical torture. 134 5.8. The torture of children and minors. 137 5.9. Torture as a policy of extermination: “democide”? 139 CHAPTER VI INTERNATIONAL JUSTICE: POSSIBLE SOLUTIONS FOR SYRIA 140 6.1. Sources of International Criminal Law. 140 6.2. Individual and State responsibility and immunity.
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