Enab Baladi – Yamen al-Maghribi 

The government of the Syrian regime has announced discovering a mass grave in the Duma region east of the Syrian capital, Damascus. The discovery of a mass grave has again raised questions about the issue of mass graves in Syria, the people responsible, the way to reach a mechanism to try these people in the future, as well as the fate of the missing people.

The announcement of the discovery of the mass grave on 17 February 2020 is not the first of its kind in Syria, as it was announced previously that dozens of mass graves were discovered in separate areas, whether these areas were under the control of the Syrian regime, the opposition factions, or ISIS.

The trial mechanisms are not easy, especially in the absence of international or local legal courts for Syria and the crimes that occurred in it, and they also need scientific and legal steps.

Practical mechanisms for identifying the perpetrators

Movements aimed at knowing those responsible for mass graves depend primarily on the actual access to the mass grave, opening it, and the exhumation of corpses in a scientific manner to document accessible information.

The information means any detail, however tiny it may appear, regarding the corpse, whether an ID or identification documents or even rings, watches and metal IDs for the soldiers. The examination of the body helps determine the method and date of death and the type of weapon used in the killing, as stated by the director of the Syria Justice & Accountability Center, Mohammad al-Abdullah, to Enab Baladi.

Al-Abdullah stressed that without access to the grave and obtaining these types of information scientifically and practically resulting from a criminal investigation, no legal action can be taken in this regard.

The director of the Syrians for Truth and Justice organization, Bassam al-Ahmad, said in an interview with Enab Baladi that identifying and reaching the perpetrators needs hard work. Testimonies are needed from dissidents from the regime or opposition factions or any acting party in Syria, as well as testimonies of people who resided in the areas where mass graves were found and whose assertions could constitute crucial evidence about the perpetrators.

Al-Ahmad pointed out that it is possible to rely on satellite photos to identify the perpetrators by monitoring the changes in the soil as a result of the excavation and determining its history, which would, in turn, help to collect human rights and legal files for future accounting.

The issue of mass graves will continue for the upcoming years, and other graves may be discovered, according to al-Ahmad.

The regime’s announcement of the discovery of a mass grave is not the first of its kind. The Syrian government previously announced in April 2016 that it had discovered a mass grave in the city of Palmyra, which included the remains of 42 people, including civilians and military officers, who were executed by ISIS according to the official version of the events.

In 2018, the Reconstruction Committee of Raqqa Civil Council found two mass graves that contained about 500 corpses in al-Rashid Stadium in the city center, followed by the announcement of the Initial Response Team in Raqqa about the discovery of a mass grave in early 2019. The team estimated that the number of victims in this grave ranged between 2,500 and 3,000 people.

Who holds accountable, whom? And on what basis?

The announcement about the discovery of mass graves raises a question about how to hold accountable those who carried out the crimes against the victims before their burial in the mass graves. This is answered by Bassam al-Ahmad, who first explained that the mass grave itself is not a violation, but the violation is somewhat related to the death of the victims whose remains were found inside. For example, was the victim killed under torture? Or was he/she murdered in one of the battles between the two parties? Here lies the difference.

The existing accountability mechanisms are limited and affiliated to the European courts. There are no special courts in Syria, while trials are held in Europe against criminals who reach them. In addition, there are lawsuits in absentia against some officials in the Syrian government and intelligence services.

Al-Abdullah considered that these trials do not express the best form of justice because of their limitations and their use of the European judiciary or the international human rights law and that the absence of special courts in Syria makes it unclear. Who holds accountable, whom? And on what basis?

Regardless of the perpetrating party, whether the Syrian regime or other parties, accountability is obligatory and necessary to preserve the rights of the victims, al-Abdullah pointed out, stressing that it is imperative to hold all violators accountable and look from this angle.

He explained that accountability takes place after the exhumation of the corpse, the conduct of a criminal investigation, and then the identification of the perpetrator.

 Adopted legal mechanisms in Syria

The Human Rights Council formed in its 17th Extraordinary Session in August 2011 the Independent International Commission of Inquiry on the Syrian Arab Republic and entrusted it with the mandate to investigate all alleged violations of international human rights law, since March 2011, to ensure accountability against the perpetrators of these violations, including those that may constitute crimes against humanity.

The Commission of Inquiry has reached confirmed evidence and documents about the occurrence of significant crimes in Syria that amount to crimes against humanity and issued 17 reports in this regard.

Under a decision by the United Nations General Assembly, in December 2016, the International, Impartial and Independent Mechanism was formed to assist in the investigation and prosecution of those responsible for the most severe crimes.

Syrian civil organizations have supported the Mechanism since its inception. In February 2017, several Syrian NGOs sent a letter to the United Nations General Assembly containing recommendations that would help the Mechanism to understand the priorities of Syrians, enhance the importance of the Mechanism, and its general acceptance by the Syrians.

The importance of action by the victims’ families

Amid the political crisis and human rights violations, in conjunction with the discoveries of mass graves over the past years, a question arises about how the victims’ families must act for the sake of their relatives.

Mohammad al-Abdullah considered that the most critical step for the victims’ families is to know the fate of their close ones and to demand the conduct of a criminal and technical investigation and DNA tests to verify the identity of the corpse, especially that they have the right to access information.

From this standpoint, al-Abdullah considered that the families of the forcibly disappeared people and the people buried in mass graves are also victims, due to the lack of mechanisms and specific information that allow dealing with the file of the missing.

International law provides that the families of the missing persons have the right to have access to information indicating the fate of these persons and that the parties of the conflict during the war must provide all information to them or organizations working in this regard. Acting bodies in Bosnia and Herzegovina have already managed to find out about the fate of 70 percent of those missing in the war, after a lengthy documentation process carried out by several human rights organizations in Bosnia over the years, according to a study issued by the Syrian Transitional Justice Commission in 2014.

Bosnia, Serbia, and Croatia fought a long war that is very similar to Syria’s today, before the signing of a peace agreement between the conflicting parties, in 1995, that has ended the war and opened the door to looking for the missing persons.

While Bassam al-Ahmad indicates that the families of the victims around the world must band together to establish bodies and associations, hold their demand for accountability for abuses, and to communicate with the relevant UN committees.

Bassam al-Ahmad and Mohammad al-Abdullah believe that the people’s movements are fundamental to hold perpetrators accountable, as a necessary step to build the new Syria.

Syrian citizens have previously filed lawsuits in Europe against officials of the Syrian regime. The “Caesar Families Association” was also established by the families of Syrian victims with the primary aim to bring to justice those responsible and continue human rights activists to “end the state of impunity.”

Individual rights movements have also emerged in 2019, trying to find a way to enable the International Criminal Court to have the power to prosecute and hold accountable the perpetrators of “war crimes” and “crimes against humanity” in Syria, regardless of the party to which they belong.

These movements were the result of facing complexity to deliver the Syrian case to the International Criminal Court through the Security Council, due to Russia and China’s use of the “veto power” which impeded all the “serious” international endeavors to open investigations on “serious breaches” and “heavy crimes” in Syria, according to the jurisdiction of the International Court.

A civil defense officer – the discovery of a mass grave in the town of Turkmen Bareh in the northern countryside of Aleppo 15 November 2019 (Syrian Civil Defense)

International Criminal Court

The International Criminal Court is the first independent judicial body, established in 2002 under the Rome Statute signed in 1998, it is considered as the first court capable of trying individuals accused of “war crimes,” “crimes against humanity” and “genocide” around the world.

As of 2012, the number of signatories to the law establishing the court is 121, to which the world’s largest countries have drawn harsh criticism, including the United States, Russia, China, and India, who have refused to sign or withdraw from the Rome Statute.

Violations are everywhere … What about the future?

Mohammad al-Abdullah emphasizes the practice of forced disappearance in Syria, which includes not only the regime but also shooters from the opposition, the Nusra Front, and ISIS. 

“We saw how bodies were hidden in several places outside the control of the Syrian regime, so all parties are committing violations. Yet, it has become permeated in the security culture in Syria,” added al-Abdullah, demanding the implementation of an integrated program of truth that endorses these practices, as arrests, murders, collective burials, enforced disappearance, and field executions and that is not restricted on the imprisonment of a specific person from a particular region.

While Bassam al-Ahmad believes that the most critical challenge lies in ensuring accountability for all parties without distinction, the victim must be judged regardless of skin color, gender, identity, ethnicity, the region to which he/she belongs, irrespective of the affiliation of the offender or the victim as well. A new Syria cannot be built without real, transparent, legal, and fair accountability steps. The perpetrators must also have the right to defend themselves.

According to al-Ahmad, an independent court can only consider clear and scientific evidence. So, mass graves constitute essential evidence on which a lot of work is required to reach a complete file on the identity of the killer, as accountability is not related to a specific court. The International Criminal Court does not have access to information in Syria that has not signed treaties on this subject.