Carl Buckley, Barrister Member at Guernica 37 International Justice Chambers, and Associate of the Guernica Centre, attended two side-events at the recent UN Human Rights Council 42nd session, both of which focussed on Syria, the plight of the millions of refugees, and the worrying developing policy of a number of those refugees being returned to Syria.
The first of these panels was arranged by the ‘Syrian Centre for Media and Freedom of Expression’, its panel members being a mix of lawyers, and human rights activists, chaired by Mazen Darwish, Advisory Counsel to the Guernica Centre, focussing on the situation in Syria and surrounding countries, the second was arranged by the International Bar Association, and its panel members focussed again on the plight of refugees, and also, accountability; including a contribution by Guernica Board Member, Ambassador Stephen J. Rapp, the former US Ambassador at Large for War Crimes, who discussed cases brought domestically under the principle of Universal Jurisdiction.
The contributions highlighted an apparent shift in policy by certain states, with a number of refugees being ‘forcibly’ returned to Syria under the guise of them signing ‘voluntary return’ documents.
These documents were not signed voluntarily however, and therefore the veil under which those states are seeking to hide, is in reality, transparent.
The millions of citizens who have fled Syria for lives is a burden on a number of states, however, it is a burden that we are morally obliged to shoulder.
The humanitarian crisis in Syria is at a level that has not been seen since the Second World War, with up to two thirds of the entire countries population now being displaced, either internally or externally.
The forcible return of such innocent civilians will only further that crisis, and it is here where Mr. Buckley made his contribution.
In both panels, Mr. Buckley drew reference to the inability of the international community to address those undoubted War Crimes and Crimes Against Humanity that had been committed in Syria since the conflict began some nine years ago; citing the fact that Syria is not a State Party to the Rome Statute, and therefore the International Criminal Court (ICC) does not have jurisdiction to investigate, a situation further exacerbated by the fact that UN Security Council members, specifically Russia and China, have consistently vetoed any attempt to pass a resolution that would refer the situation in Syria to the ICC.
Efforts to seek accountability have therefore been pursued at the domestic level, as highlighted by Ambassador Rapp, who has been instrumental in the development of such efforts, under the principle of Universal Jurisdiction, with France, Germany, and Liechtenstein seemingly taking the lead.
Ambassador Rapp also drew attention to Guernica’s submissions in Spain in a case that is currently still under appeal before the Spanish Courts.
Mr Buckley highlighted however that in late 2018, the position changed, and that the door to the ICC may be open.
He referenced Guernica’s Amicus Curiae brief submitted to the Pre-trial Chamber at the ICC when it considered the issue of jurisdiction over the situation of the Rohingya being forcibly deported into Bangladesh from Myanmar, and drew attention to the fact that the Chamber ruled that the ICC did in fact have jurisdiction, as although Myanmar was not a State Party to the Rome Statute, Bangladesh is such a State Party.
Guernica’s submission to the ICC post the Myanmar decision was then raised, it being the first Article 15 communication to the Office of the Prosecutor (OTP) involving the situation in Syria, that sought to apply the ‘Myanmar decision’, on the basis that although Syria was not a State Party to the Rome Statute, Jordan is, and therefore, there would appear to be limited jurisdiction on the basis that up to 1 million Syrian citizens have, given the actions of the Syrian regime, been forcibly deported into Jordan.
It is of note that the Guernica were one of a select group granted leave to file such an Amicus Brief, that brief being referred to within the decision of the Pre-Trial Chamber, and further, it being the only submission that sought to pre-empt the likely application of the ruling to Syria, Mr Buckley being a leading member of the team drafting both submissions.
The OTP has not made a decision as yet, however, as Mr. Buckley sought to highlight “there is now a credible basis upon which accountability can perhaps be pursued through the International Criminal Court, a basis that has not been there previously”.
The current situation of refugees is of direct relevance to this submission, as, and as was highlighted by other esteemed panel members, there appears to be an attempt to forcibly return refugees back to Syria.
Both panels were in agreement that on no credible assessment can Syria be described as a ‘safe’ country, the persecution that gave rise to the mass exodus of civilians into neighbouring states still exists today, and if anything, would be more pronounced for those returning.
Those that have left Syria during the conflict are seen as ‘disloyal’ by the regime, and are therefore to be targeted.
Mr. Buckley drew reference to the fact that “tens of thousands of civilians have been subjected to arbitrary detention, to enforced disappearance, to torture, and, extra judicial killing”, and it was those that protested against the ruling regime that were most at risk.
Anyone returning, would be at that same risk.
Mr. Buckley highlighted that we are already receiving reports of returning refugees being ‘forcibly conscripted’ into regime forces, and placed onto the ‘front line’ in conflict zones “purely on the basis that they have already shown their disloyalty and are therefore deemed expendable”.
This has a direct impact on the Article 15 communication as “not only was it the persecution of civilians that gave rise to the Forced Deportation in the first instance, but, it demonstrates that that Persecution still continues, and will continue, and therefore, safe return is simply not possible at this time”.
The second panel, whilst discussing these issues also raised a further issue to consider, that being the rebuilding of Syria post-conflict, and the extent to which corporations would acknowledge their own human rights obligations when working in areas that have, and continue to, suffer human rights violations.
The Panel, Mr. Buckley, Ambassador Rapp, Emile Max from the Geneva Academy, and Federica D’Alessandra Co-Chair of the IBA War Crimes Committee, all expressed concerns that the eventual rebuild should not be an opportunity to ‘whitewash’ the crimes of the regime, nor should it be an opportunity for relations to be normalised with what is a brutal and dictatorial regime.
In closing, calls were made by Mr. Buckley for “the international community to remember their obligations towards refugees, and recognise their obligation to protect, and to continue to seek to achieve accountability for the millions of victims of the conflict”.
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