Un dispatch
Six years in, the conflict in Syria is synonymous now with the brutality of war. Currently, there are more than 5.1 million registered Syrian refugees with another 6.3 million Syrians displaced within the country. The number killed is harder to pin down, but the Syrian Observatory for Human Rights estimated in March there were 465,000 dead or reported missing. Yet despite ample evidence of war crimes and crimes against humanity committed by all sides of the war, efforts to bring any form of accountability to the conflict have stalled.
Secretary General Antonio Guterres this week appointed her to head a new UN entity dedicated exclusively to investigating war crimes and crimes against humanity in Syria, with a specific mandate that the information she gathers will assist in the eventual prosecution of these crimes. Her office is known in the UN as the International, Impartial and Independent Mechanism (IIIM), and it was created by the U.N. General Assembly last December to circumvent a key problem facing accountability and justice in Syria — the fact that Syria is not a member of the International Criminal Court.
Because Syria is not a member of the ICC, it has no direct jurisdiction over the conflict. The ICC could still investigate and prosecute crimes that occur there, but only if the Security Council passes a resolution giving it jurisdiction. With veto-wielding Russia firmly on the side of the Bashar al-Assad regime and now fighting in Syria itself, attempts to pass such a resolution have consistently failed.
With the international community’s primary judicial mechanism out of the picture, more creative approaches were required. In 2011, the Human Rights Council created the Independent International Commission of Inquiry on the Syrian Arab Republic, otherwise known as the “Syria CoI,” to establish the facts, circumstances and identify perpetrators of alleged international crimes. The Syria CoI has no ability to actually prosecute crimes, but by establishing facts surrounding allegations the hope is if prosecution became a possibility, the investigatory groundwork would already be in place.
Adding to this, over the strenuous objections of Syria, Russia and its allies, the General Assembly established the IIIM late last year. The mandate of the mechanism goes further than the Syria CoI, explicitly stating its purpose is to “collect, consolidate, preserve and analyze evidence of violations of international humanitarian law and human rights violations . . . to prepare files in order to facilitate and expedite fair and independent criminal proceedings.” Although the IIIM and Syria CoI compliment each other and will cooperate with each other, it is the IIIM that is striving to create a framework that will lead to real criminal accountability in the conflict.
And it is the IIIM that Marchi-Uhel is now appointed to head. A French judge, Marchi-Uhel’s career spans from a legal officer at the International Criminal Tribunal for the Former Yugoslavia to a judge with the Extraordinary Chambers in the Courts of Cambodia prosecuting senior members of the Khmer Rouge. She also served in the French Foreign Ministry and as part of U.N. missions in Bosnia, Kosovo and Liberia. Since 2015, she served as the ombudsperson for the Security Council committee monitoring sanctions against ISIS. She brings with her a distinguished career in international law, and international criminal law more specifically.
But as a “prosecutor without a tribunal” Marchi-Uhel may be facing the biggest challenge of her career. Although there are steady demands for justice for the atrocities in Syria, there is no easy way to get there. The IIIM is a step in the right direction, but even the most basic of legal issues – jurisdiction – is still far from resolved. With growing international involvement in Syria and neighboring Iraq, the appetite for a formal legal forum may very well dwindle as possibilities of prosecution spread to new players.
In the meantime, the IIIM carries on with its substantial mandate. Keeping the pressure on for real legal action while still gaining access to document and investigate alleged crimes is no small task. But the appointment of someone as distinguished and experienced as Marchi-Uhel is a clear sign the U.N. is taking the IIIM – and the issue of justice in Syria – seriously. What remains to be seen is which side of the justice debate will ultimately win this particular war of attrition.