The Syrian civil war started in 2011 after a popular democratic uprising against the regime of Bashar al-Assad led to a brutal crackdown against the civilian population of the country. Since then, Syria has spiralled into the Middle East’s bloodiest civil war and a generation defining humanitarian disaster. In July 2017, the Syrian Observatory for Human Rights estimated that the Syrian war had already claimed almost half a million lives.
Although the UN Independent International Commission of Inquiry on the Syrian Arab Republic found reliable evidence of the commission of international crimes during the conflict —including instances of extermination and torture on an industrial scale constitutive of crimes against humanity—all international efforts to ensure accountability for these crimes have failed. As a matter of fact, on 22nd May 2014, Russia and China vetoed a Security Council resolution that would have referred the Syrian situation to the International Criminal Court.
In December 2016, this deep lacuna of impunity encouraged the United Nations General Assembly to create the International, Impartial and Independent Mechanism (IIIM) to assist in the investigation and prosecution of persons responsible for the most serious crimes under international law committed in Syria since 2011. Noting that national tribunals are currently the only available jurisdiction to bring cases against members of the Syrian regime, one of the main mandates of this Mechanism is to coordinate and share information and evidence with national courts and tribunals to facilitate and expedite fair and independent criminal proceedings against perpetrators of international crimes in Syria.
In 2013, a Syrian military defector code-named Caesar defected with a cache of 55,000 photos depicting thousands of detainees tortured to death in security branch prisons in Damascus. Guernica members were involved in his release and relocation, and in 2016, we identified one of the bodies as the brother of a Spanish national, giving the Spanish National Court jurisdiction over one of the era-defining mass atrocities of the 21st Century. Partnered with Syrian human rights lawyers and activists, prominent European NGOs, and international diplomats, on 31st January 2017, we filed a criminal complaint before the Spanish National Court charging senior Syrian security and intelligence officials with state terrorism.
In March 2017 Judge Eloy Velasco issued an extraordinary decision on jurisdiction admitting the criminal complaint and setting the precedent for the first criminal case in front of a judicial body against Assad’s crimes. In his decision, Judge Velasco confirmed that the events are constitutive of crimes of enforced disappearance and State terrorism, and encouraged the establishment of a European “joint investigation team” of judicial authorities to investigate crimes committed in Syria. Following this ruling, the complainant, a Spanish woman whose brother was arbitrarily detained, forcibly disappeared, tortured and executed in a detention centre controlled by Syrian security forces, could finally attend the Spanish Criminal Court to provide testimony about her brother’s disappearance and death.
Nevertheless, the Office of the Prosecutor appealed Judge Eloy’s decision—an appeal that our legal team opposed— and on 27th July 2017, the Plenary of the Criminal Division of the Spanish Criminal Court ruled that Spanish Courts lacked jurisdiction to investigate and prosecute the crimes exposed in the complaint. Nevertheless, the Plenary’s decision is just a step in the legal process. Our legal team has already appealed the decision before the Appeals Chamber of the Spanish National Court. We remain confident in the strength of our case and the firm jurisdictional basis, and we will continue fighting alongside our European counterparts and Syrian human rights defenders to exhaust all available means and legal resources at our disposal to pursue justice for the thousands of victims of the Syrian conflict.
Judge Velasco’s appeal to conform a transnational investigation team is consistent with our efforts to prepare for the Syrian post-conflict transitional justice by bridging Syrian and international evidence projects. Guernica is currently using the Syria case as focal point to convene a network of Syrian human rights defenders as well as all European and American actors involved in accountability for the Assad regime’s crimes by engaging these actors in a common Committee to collect and analyse evidence, secure witness protection and relocation, and identify priority crimes, perpetrators, and thematic areas for post-conflict justice initiatives. We are hoping to coordinate these actions with the support and coverage of the United Nations IIIM, which will be fundamental to generate synergies among the different investigative and prosecutorial processes being developed before diverse national jurisdictions.