Syria: justice or immunity as a step towards transition?

One of the current pre-conditions of the Syrian Opposition Coalition (SOC) is that key personnel within the regimes political, military and security structures need to be removed from positions of power for any credible transitional process to begin.  Whilst the SOC has not named all of the individuals it wishes to see removed, it is referring to those who have committed or ordered war crimes and crimes against humanity.
 
A key question remains though – how, practically, would that happen? And what role could or should Russia and Iran have in this given that they have more influence with the government in Damascus?
 
The preferred option from Amnesty International’s perspective would be for the Russians to agree to a UN Security Council resolution which sees the situation referred to the Prosecutor of the International Criminal Court (ICC). I recently wrote about the importance of an ICC referral. However, Russia and the USA have so far failed to support such a move. It is nevertheless important to keep pressing on this key issue as a priority. The SOC currently supports the referral idea but I wonder if it is doing enough to influence Russia and the USA on this? It’s important that it does.

I know that in some quarters there’s great cynicism towards the UN and even the ICC but removing key blockers to a transitional process would seem to be in the interest of everyone advocating engagement at Geneva 2 – including Russia and Iran. We at Amnesty International have always been clear that we oppose the inclusion of any person reasonably suspected of ordering or committing crimes under international law in any transitional governing body. Any such person should be investigated and prosecuted, if there is sufficient admissible evidence.
 
It isn’t for us to speculate on the question of individual criminal responsibility as this should be dealt with by independent and impartial courts, either in Syria (during or post transition) or in other countries exercising universal jurisdiction over crimes, or ideally at the ICC if the situation is referred to its Prosecutor.
 
A point I’ve made several times when this justice route has been laughed at by some anti-regime activists is that the UN Commission of Inquiry on Syria has for some time concluded that government forces and the shabiha militias have committed crimes against humanity, war crimes and gross violations of international human rights law and international humanitarian law. It has also already concluded that such violations are committed pursuant to Syrian state policy. So any person suspected of ordering or committing such violations should of course be investigated and, if there is sufficient admissible evidence, prosecuted in a fair trial without recourse to the death penalty. This includes persons in command or superior responsibility, including the political leadership of the Syrian government. And it is also important to point out that the UN Commission of Inquiry has already identified individuals in leadership positions who may be responsible and submitted confidential lists of suspected individuals and units to the United Nations High Commissioner for Human Rights.
 
But I still hear people saying this option is not viable – the Russians, they say, will continue to block any moves at the UN Security Council which seek credible accountability. This may be true and it may be that Russia and Iran, along with other international players, maybe in the GCC, decide to adopt a Yemen-style model and propose a comprehensive immunity package for the named individuals and their families. If so, I suspect the Russians would say to the SOC that they are aware of how unpalatable this is but it should be explored given that so many other options are currently not working. It is something the SOC would need to be prepared for.
 
Such immunity deals do not give comfort for those who demand credible justice and usually leave space for further violations and abuses, but we know how “international diplomacy” can work when it comes to arranging such deals. 

Whilst an immunity package may sound superficially attractive, especially for those seeking to remove blockers so they can get on with negotiations towards a transition, we should remember the victims of human rights violations and their families. For many of them, it would be a crushing blow to see those suspected of criminal responsibity for violations and abuses walk away without being held to account.
 
Immunity leads to impunity - It denies justice and deprives victims of the truth and adequate reparations. Insisting on credible accountability is sometimes characterised as “hard-line” by government officials themselves focused exclusively on a transition process, but allowing serious human rights violators to go unpunished will surely sow the seeds of instability and future crises in Syria. A country trying to emerge from a brutal conflict cannot rise up when it is built on impunity and injustice.  
 
To help progress a credible transition process, accountability will certainly be needed. This requires an independent, international investigation into allegations of crimes under international law, regardless of the rank or affiliation of those responsible – preferably by the ICC.
 
Now, it is possible some players in this, including Russia and Iran and possibly countries involved in the Yemen immunity deals, will counter this and say - yes, accountability and immunity are both designed to  remove  key personnel  in the way of a transitional process - but immunity deals are easier to arrange than the  ICC route.  This is a seductive pitch, but it should be resisted.  
 
A challenge for the Syrian Opposition Coalition will be to engage with Russia and maybe Iran, quite possibly at Geneva (currently scheduled for January 22 2014) or before then, directly or indirectly, for a set of actions which sees named individuals held to account. As I’ve said I think the SOC should press for credible accountability via the ICC even though naysayers will describe this as unrealistic and that an immunity deal, unpalatable as that sounds is easier.
 
There will of course be a lot more work to do even if a transition plan is agreed at Geneva. There will still be spoilers, but ensuring accountability is important not just for those demanding credible justice but also to help ensure a credible transition can move forward effectively. This needs to be driven home to Russia, Iran and any others thinking of denying justice to Syrians.

 
Kristyan Benedict is on Twitter as @KreaseChan