The rebel leader now running much of Syria, Ahmed al-Sharaa, has offered rewards for senior army and intelligence officers involved in war crimes, as the Assad regime’s sudden fall brought hopes of justice for the many atrocities of one of the world’s most brutal dictatorships.
“We will not hesitate to hold accountable the criminals, murderers, security and army officers involved in torturing the Syrian people,” Sharaa, formerly known as Abu Mohammed al-Jolani, said in a statement on the Telegram messaging app on Tuesday. He added that Syria’s new authorities would seek the return of Assad regime officials who have fled abroad.
However, legal experts who been compiling evidence of war crimes and crimes against humanity in Syria cautioned that Syria was a long way from having a legal system capable of conducting war crimes trials. The regime was the worst abuser by far, and was detaining more than 135,000 people – including nearly 4,000 children –at the time of its fall. But there were other perpetrators too, including Sharaa’s Hayat Tahrir al-Sham group (HTS), which is thought responsible for the detention or forcible disappearance of 2,514 Syrians, including 46 children.
“In the euphoria and the thrill of the moment, we should not lose sight [of these problems],” said Alan Haji, who is working on war crimes cases in The Hague for the Syria Justice and Accountability Centre (SJAC), a Syrian-led human rights organisation. “In the Syrian penal code, there is no such thing as a war crime or crimes against humanity or genocide, and there’s no prescribed punishment for such crimes.”
If a path to justice has been opened up by the regime collapse, it is likely to be long and strewn with obstacles.
The Assad family have fled to Russia, but there was limited space on the private plane which reportedly whisked them out of Syria. The intelligence agency officers who were the levers and cogs of the Syrian torture and killing machine have mostly been left to fend for themselves. Many are expected to try to use human smuggling networks to reach Europe, and efforts are under way to track them as they seek to escape.
At the same time, the abrupt implosion of the infrastructure of state terror has made available a huge volume of evidence in the form of witnesses and filing cabinets full of documents.
“It’s a situation much like Germany in 1945 or Iraq in 2003. You have a sudden availability of all state records,” said William Wiley, the founder and executive director of the Commission for International Justice and Accountability (CIJA), a NGO largely financed by western governments which has been collecting war crimes evidence in Syria for more than a decade. “It’s a very unusual situation, and its suddenness creates challenges and opportunities in simply dealing with the material.”
CIJA, which has investigated atrocities by the Assad regime and Islamic State, has so far gathered 1.3m pages of documentary evidence, but Wiley anticipates much more will now be available.
The organisation has 30 investigators who have been working inside Syria, and it hopes to bolster that number by at least 10. Meanwhile, it is shipping in equipment such as scanners for digitising documentary evidence.
For human rights activists inside Syria as the regime fell, the priority was to stop it claiming more victims. Syria Civil Defence, known as the White Helmets, offered a $3,000 reward for information leading to the discovery of any secret prisons or detention cells where regime victims might be trapped.
Farouq Habib, the group’s deputy general manager, said the ultimate aim would be for those responsible for the brutality of the regime to be held accountable by Syrian courts, but that might not be feasible for some time.
“The regime has just fallen in Syria,” Habib said. “We will definitely see justice but [the country] is not ready for it. The whole system was built by the Baath party and it has been there for 50 years. It’s corrupted and it does not meet the best standards to respect international humanitarian law and human rights.”
In the absence of a functioning justice system in Syria, there is a range of options in the international arena.
The international criminal court in The Hague does not have direct jurisdiction because Syria has not joined the court or accepted its jurisdiction, and an attempt to impose jurisdiction through the UN security council was blocked in 2014 by Russia and China.
However, several human rights groups have argued there is a precedent for a new pathway for ICC involvement in Syria, created in 2018 when the court’s judges ruled it had jurisdiction over crimes committed by the Myanmar government (a non-member of the court) because some of the criminal conduct spilled into neighbouring Bangladesh (a member).
Nick Leddy, a former ICC trial lawyer, said there were “considerable parallels” between the violent deportations in Myanmar and the situation in Syria which has resulted in the displacement of about 650,000 people into Jordan, the only neighbouring country that accepts the ICC’s jurisdiction.
Leddy, now the head of litigation for Legal Action Worldwide, said ICC member states should “seize the opportunity” offered by Assad’s fall to request an investigation into well-documented crimes against humanity in Syria.
“The sudden collapse of the Assad regime should change the equation as far as the ICC is concerned,” said Rodney Dixon, a British lawyer who has been representing Syrian refugees in Jordan and applying on their behalf to request the ICC to open an investigation against the Assad regime. “Syria itself and other states can and should refer the situation to the ICC under its statute for investigation and prosecution given the gravity of the crimes.”
No public action has been taken so far, but diplomats from multiple European member states are now understood to be discussing making a referral to Karim Khan, the ICC prosecutor.
Another option is to establish a hybrid court, modelled on the UN special court for Sierra Leone, in which the affected nation partnered with the UN to create a court staffed by judges taken largely from the region.
David Crane, the Sierra Leonian court’s founding chief prosecutor, argued on the Jurist website that a similar court for Syria would “serve not only as a tool for justice but also as a testament to the commitment of the Arab world to uphold human rights and human dignity”.
An ICC investigation or hybrid court would take a considerable amount of time to get up and running. The requirement for legal action might come much sooner, however, as Assad’s torturers and executioners seek to flee.
“Our assessment is they will seek to leverage existing human smuggling networks into Europe, where, in a worst-case scenario where they get caught, they’re not going to get executed,” Wiley said.
The CIJA has already helped support more multiple prosecutions of Assad loyalists in Europe, mostly in Germany, under universal jurisdiction laws applicable for mass atrocities and other international crimes.
The organisation has a tracking team for pursuing fugitive suspects, which Wiley hopes will now be “bolstered to the degree required with our existing law enforcement partners across the west and then ultimately, when it becomes possible, with the Syrian national authorities”.
He added: “If there’s any security intelligence guy that rocks up in Europe, there’s typically going to be enough material already to hand.”
The SJAC interviews refugees with the aim of supporting war crimes prosecutions. It is likely to be these same diaspora communities that will raise the alarm if suspects surface in Europe.
“There is an opportunity that the doors of these fortresses of horror and death are open now,” Haji said. “The evidence is out there. The victims and witnesses are out there, but don’t forget, the perpetrators are out there too.”