The OPCW Provides the Next Opening for States to Advance Accountability for Atrocities in Syria
By Eric Witte
When Dutch Foreign Minister Stef Blok sent a diplomatic note to his Syrian counterpart last month, which put Syria on notice for violating the Convention against Torture, it signaled the Netherlands' intention to bring a case against Syria before the UN’s International Court of Justice (ICJ). The complaint is an important step toward accountability for atrocities in Syria. It stands out against the inadequacy of international action in response to atrocity crimes in Syria—crimes that have left tens of thousands dead and caused unspeakable suffering.
Even with the Dutch move, comprehensive accountability for Syrian atrocities remains a distant prospect. Victims are now looking to states to lead in putting new accountability building blocks in place. In the coming weeks, states an excellent opening to do so.
Since the start of the conflict in 2011, the Syrian government has converted prisons into sites of systematic torture for its opponents and sponsored non-state militias to run part of this network. President Bashar al-Assad’s government and its allies have launched chemical weapons attacks against civilians, intentionally bombed medical facilities and schools, engaged in extensive and systemic sexual violence, and forcibly displaced millions. Myriad government-backed fighters, opposition forces, terrorist organizations, and foreign governments have also perpetrated atrocities against civilians.
The Dutch complaint advances the expectation of accountability for these mass atrocities. First, as Assad’s government consolidates control over former opposition-held territory, the complaint sends an important signal to other states that there should be no rush to reestablish diplomatic relations with Syria. Second, if the complaint results in a case before the ICJ, a final ruling could help build momentum for the eventual establishment of a Syrian war crimes court. Finally, the ICJ could issue provisional measures even before it reaches a final decision, for example, ordering Syria to grant an independent body access to its detention facilities.
Admittedly, there are also many reasons for which the Netherlands’ diplomatic note could only have modest practical effect. An ICJ case could impose punitive measures on the Syrian government, but do nothing to hold individual perpetrators to account. What’s more, the process leading to an ICJ case and an ultimate decision from the court could take years.
Nevertheless, the Dutch move takes another in a series of piecemeal steps towards some form of justice for Syrian atrocity victims. Impasses at the UN Security Council have necessitated this fragmented approach. Veto-wielding Russia is itself deeply implicated in the commission of atrocities in Syria. With China, it has blocked attempts at the Security Council to refer the Syria situation to the International Criminal Court (ICC), which has a mandate to investigate and prosecute individual perpetrators. Any Security Council effort to create a stand-alone court such as those it created for the former Yugoslavia or Rwanda are doomed for the same reason. The current U.S. administration’s incompetence—and its refusal to stand up to war criminals anywhere—abets this dysfunction.
In the absence of political will among leading world powers, it has been largely left to Syrian survivors, their families, and human rights activists to fill the void. Numerous Syrian organizations have gathered evidence and identified witnesses of atrocity crimes. They have prepared dossiers for war crimes prosecutors in states such as Germany, France, Sweden, and Spain. Such evidence and legal briefs, in turn, facilitate the investigation and prosecution of crimes committed in Syria under the legal principle of universal jurisdiction. For example, this year, German prosecutors launched a landmark torture case against former Syrian intelligence officials. These efforts have been backed by international human rights organizations including the Open Society Justice Initiative.
National war crimes units prosecuting these cases are also supported by a UN body mandated to collect and preserve evidence of atrocities committed in Syria since the beginning of the conflict. States created this International, Impartial, and Independent Mechanism (IIIM) for Syria by majority vote in the UN General Assembly in 2016. However, while the IIIM can investigate, it cannot itself prosecute crimes.
Because states have had to work around Security Council dysfunction, these important avenues for Syrian accountability remain deeply inadequate. However, over the next two months, states will have a new opportunity to insist on further progress. Earlier this year, the Organization for the Prohibition of Chemical Weapons (OPCW) gave Syria until October 8 to fully comply with the Chemical Weapons Convention. The body previously found definitive evidence of Syrian government responsibility for chemical weapons attacks. Syria is expected to miss the deadline to come clean.
In response, the 193 member states of the OPCW might simply decide to suspend Syria’s voting and speaking rights in the body when they convene in November. This would be a mere slap on the wrist for Assad and other responsible officials. Given the gravity, scale and duration of the Syrian government’s crimes, they must do more. For example, the OPCW Conference of States Parties could call on states to enact punitive measures against Syria and refer the matter to the UN General Assembly—something that falls within its mandate.
Such a resolution would give impetus to multilateral discussions and greater creativity in bringing forward accountability measures for atrocity crimes. Ultimately, states should consider pooling their jurisdiction to establish a treaty-based, stand-alone Syria tribunal, modeled on the post-World War II Nuremberg tribunal and the ICC itself. Such a tribunal could bring together Syrian and international jurists to investigate, prosecute and adjudicate war crimes and crimes against humanity. A tribunal in this mold could also contribute to the reconstruction of the country’s post-war democratic institutions by developing the skills of Syrian legal practitioners who could become members of a future, reformed Syrian judiciary.
The obstacles to accountability in Syria remain daunting and reflect a fracturing of the international order. Over the coming weeks, states interested in rebuilding and strengthening multilateral institutions have a clear opportunity to build on Dutch leadership. By acting at the OPCW, they can give new hope to Syrian victims who demand and deserve greater justice.
Eric Witte is the senior project manager on national trials of grave crimes for the Open Society Justice Initiative.