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Report of the Independent International Commission of Inquiry on the Arab Syrian Republic

Published online by Cambridge University Press:  27 February 2017

Hillary W. Amster
Hillary W. Amster*
Affiliation:
American Society of International Law
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International Legal Documents
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International Legal Materials , Volume 51 , Issue 6 , December 2012 , pp. 1381 - 1466
Copyright
Copyright © American Society of International Law 2012

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References

Endnotes

1 Human Rights Council Res. S-17/1, The Human Rights Situation in the Syrian Arab Republic, U.N. Doc. A/HRC/RES/S-17/1 (Aug. 23, 2011).

2 Human Rights Council Res. 19/22, The Human Rights Situation in the Syrian Arab Republic, U.N. Doc. A/HRC/RES/19/ 22 (Apr. 10, 2012).

3 Human Rights Council Res. 17/2, Rep. of the Indep. Int’l Comm’n of Inquiry on the Syrian Arab Republic, U.N. Doc. A/HRC/S-17/2/Add. 1 (Nov. 23,2011); Human Rights Council Res. 19/69, Rep. of the Indep. Int’l Comm'n of Inquiry on the Syrian Arab Republic, U.N. Doc. A/HRC/19/69 (Feb. 22, 2012).

4 Reproduced in Oral Update of the Indep. Int’l Comm’n of Inquiry on the Syrian Arab Republic Republic, U.N. Doc. A/ HRC/20/CRP.1 (Jun. 26, 2012).

5 Megan Price, et al., Preliminary Statistical Analysis of Documentation of Killings in the Syrian Arab Republic (2013), available at http://www.ohchr.org/Documents/Countries/SY/PreliminaryStatAnalysisKillingsInSyria.pdf; http://www.bbc.co.uk/news/world-middle-east-19331551.

6 For a complete list of U.N. actions and documents pertaining to the conflict in Syria, see http://www.unric.org/en/unriclibrary/26585.

7 Press Release, Security Council, S/PRST/2012/6 (Mar. 21, 2012).

8 S.C. Res. 2043, ¶ 6, U.N. Doc. S/RES/2043 (Apr. 21, 2012).

9 Monamend, Saira, The U.N. Security Council and the Crisis in Syria, ASIL Insight (Feb. 16, 2012), http://www.asil.org/insightsl20326.cfm.Google Scholar

10 United Nations, Transcript of the Press Conference by the Joint Special Envoy of the United Nations and the League of Arab States for Syria, Kofi Annan (Aug. 2, 2012).

11 Id.

12 Press Release, Office of the High Commissioner for Human Rights, Human Rights Council Holds Interactive Dialogue with Chair of International Commission of Inquiry on Syria (Sept. 17, 2012), available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12528&LangID=E.

13 Id.

14 Id.

15 Human Rights Council Res. 21/26, The Human Rights Situation in the Syrian Arab Republic, U.N. Doc. A/HRC/RES/21/ 26 (Oct. 17, 2012).

16 See Human Rights Council Res. S-18/1, ¶ 10, U.N. Doc. A/HRC/RES/S-18/1 (Dec. 5,2011); Press Release, Office of the High Commissioner for Human Rights, Human Rights: A Media Guide to the New U.N. Independent Experts and Mandates (2012) (Dec. 14, 2012), available at http://www.ohchr.org/eri/NewsEvents/Pages/DisplayNews.aspx?NewsID=12895&LangID=E.

* This text was reproduced and reformatted from the text available at the Office of the High Commissioner for Human Rights Web site (visited December 31, 2012)http://www.ohchr.org/en/countries/menaregion/pages/syindex.aspx.

† The annexes to the present report are reproduced as received, in the language of submission only.

1 The Commissioners are Paulo Sergio Pinheiro (Chairperson) and Karen Koning AbuZayd.

2 See also annex III.

3 Matthew Epstein and Ahmed Saeed, “Smart’ sanctions take toll on Syria”, Financial Times, 18 July 2012.

4 UNCHR, “UNHCR gravely concerned about dramatic escalation of Syria exodus” 20 My 2012, available from http://www.unhcr.org/50094bdcb.htm.

5 See UNHCR, Syria Regional Refugee Response, data.unhcr.org/syrianrefugees/regional.php.

6 The Government of the Syrian Arab Republic estimates that the number of Iraqi refugees in the country stands at more than 1 million.

7 OCHA, Humanitarian Bulletin, Syria, No. 3, 5 July 2012.

8 OCHA, Humanitarian Bulletin, Middle East and North Africa, No. 2, May–June 2012.

9 “Critical funding shortage threatens humanitarian response for Syria – UN official”, UN News Centre, 16 July 2012.

10 See A/HRC/20/CRP.1, para. 44 and annex.

11 See also annex II, paras. 30-42.

12 For a full account of the unlawful killings investigated by the commission, see annex V.

13 For more information on shelling, see annex VI.

14 Snipers regularly accompanied forces during ground assaults and were responsible for a significant number of civilian deaths. The commission recorded 35 instances of civilians shot by snipers. Dozens of interviewees described the detrimental psychological and social effects of the presence of snipers in their neighborhood. People feared leaving their houses and, when shelling started, feared staying at home.

15 Rome statute, art. 8 (2) (c) (i) – 1. See also annex II, paras. 30–42.

16 See annex V, para. 55.

17 See also annex VII.

18 See also annex VIII.

19 See also annex IX.

20 See annex II, paras. 30–42.

21 See also annex IX.

22 See also annex X.

23 This protection remains in place unless the protected persons or objects take part in hostile acts. See annex II, paras. 30–42.

24 See also annex XI.

25 A/HRC/19/69, para. 87.

26 See annex II, paras. 11–13.

27 See annex II, paras. 8–10.

28 On 25 June, the commission chairperson met the head of the National Independent Legal Commission in Damascus. The Commission is represented in the capital and govemorates. It reportedly received 6,500 complaints, most of which refer to deaths and missing persons, levelled against the army, police and anti-Government armed groups.

a A/HRC/S-17/2/Add.1 paras. 23–26.

b See annex III.

c This view is supported by the ICRC, among others. See “the Syrian Arab Republic in civil war, Red Cross says,” 15 July 2012, Available from http://www.bbc.co.uk/news/world-middle-east-18849362. President Assad himself described the Syrian Arab Republic as being in a state of war in a statement on 26 June 2012, see “the Syrian Arab Republic in a State of War, says Bashar al-Assad,” 26 July 2012. Available from http://www.bbc.co.uk/news/world-middle-east-18598533.

d See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996. The International Court of Justice ruled that IHL is lex specialis vis-à-vis IHRL during armed conflicts. Thus, the parties must abide by the legal regime which has a more specific provision on point. The analysis is fact specific and therefore each regime may apply, exclusive of the other, in specific circumstances. The Human Rights Committee generally concurs with this view as set out in the General Comment 31 to the ICCPR. “The Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.”

e The International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights were ratified by the Syrian Arab Republic in 1969, the same year it ratified the Convention on the Elimination of All Forms of Racial Discrimination. The Syrian Arab Republic is also party to the Convention on the Elimination of Discrimination against Women which it ratified in 2003, the Convention on the Prevention and Punishment of the Crime of Genocide in 1955, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment and Punishment in 2004 and the Convention on the Rights of Child in 1993. The Syrian Arab Republic ratified the Optional Protocol to the Convention on the Rights of Child on the involvement of children in armed conflict in 2003. The Syrian Arab Republic has not ratified the Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity.

f Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 178, paras. 105–106, “[t]he protection offered by human rights conventions does not cease in case of armed conflict.” See also Nuclear Weapons case, statements concerning IHL as lex specialis, at p. 240, para. 25.

g See Human Rights Committee, General Comment No. 31 on The Nature of the General Legal Obligation Imposed on State Parties to the Covenant (2004), paras. 15-19. In this General Comment, the Human Rights Committee considered that the duty to bring perpetrators to justice attaches in particular to violations that are criminal under domestic or international law, torture and similar cruel, inhuman and degrading treatment, summary and arbitrary killing and enforced disappearance. See also the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by the General Assembly in December 2005, and the Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (which were recognised in a consensus resolution of the UN Commission on Human Rights in 2005).

h For a more expansive view of the application of IHRL, see Clapham, Andrew, Human Rights Obligations of Non-State Actors (Oxford, Oxford University Press, 2006)Google Scholar. To similar effect, see UN Secretary-General, Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2011, para. 188, available from: http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf.

i As the Special Court for Sierra Leone held, “it is well settled that all parties to an armed conflict, whether States or non-State actors, are bound by international humanitarian law, even though only States may become parties to international treaties.” See Prosecutor v. Sam Hinga Norman, case SCSL-2004-14-AR72(E), (31 May 2004), para. 22. Common Article 3 of the Geneva Conventions itself states that “each party … shall be bound.” (emphasis added).

j One repository of the principles of customary IHL can be accessed in Customary International Humanitarian Law (3 vols.), by Henckaerts, Jean-Marie and Doswald-Beck, Louise for the International Committee of the Red Cross, (Cambridge, Cambridge University Press, 2005) (ICRC Study).Google Scholar

k The Syrian Arab Republic is a party to the following treaties: The Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare (1925); the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (1929); the Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954) and its Protocol 1954); the International Convention against the Recruitment, Use, Financing and Training of Mercenaries (1989).

1 See also S/RES/1820.

m See Schabas, William, The International Criminal Court: A Commentary on the Rome Statute (Oxford, Oxford University Press, 2010)CrossRefGoogle Scholar, Triffterer, Otto, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 2nd ed., (Oxford, Hart Publishing, 2008)Google Scholar and Bassiouni, M. Cherif, International Criminal Law (3 vols.) 3rd ed., (Boston, Martinus Nijhoff, 2008).Google Scholar

n See http://www.icc-cpi.int.

o Article 7, Rome Statute. See Bassiouni, M. Cherif, Crimes Against Humanity: Historical Evolution and Contemporary Practice (Cambridge, Cambridge University Press, 2011).CrossRefGoogle Scholar

p The “Elements of Crimes” applied to cases at the International Criminal Court, Available from http://www.icc-cpi.int. See also Prosecutor v. Kunarac et al., IT-96-23-T & IT-96-23/I-T, Judgement, Trial Chamber, 22 February 2001.

q The list in the Statute includes murder, extermination, enslavement, forcible transfer of population, imprisonment, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, sexual violence, persecution, enforced disappearance, apartheid and other inhumane acts. See Article 7 (1) (a–k).

r Listed as murder under Article 7 (1) (a) of the Rome statute. See annex V.

s Article 7 (1) (h) of the Rome statute. See annex VII.

t See annex VIII.

u See annex IX.

v ICC Pre-Trial Chamber, Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010, para. 95 (citations omitted).

w ICTY, Dusko Tadic Judgment, 7 May 1997, para. 648.

x ICC Pre-Trial Chamber, Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010, para. 96.

y See for example the ICRC Study (supra fn 46). In that extensive study, the ICRC identified 161 customary international humanitarian legal norms.

z See Supra, fn 43, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UNGA Resolution 60/147, 16 Dec. 2005, Art. 4.

aa Article 2 of ICCPR requires a State party to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in it and also to ensure an effective remedy for any person whose rights have been violated.

bb General Comment 31, para. 8.

cc Unlike in internal conflicts, the obligation in international armed conflicts rests not only with customary law, but also with the “grave breaches regime,” set out in the four Geneva Conventions. See Article 49 of the First Geneva Convention, Article 50 of the Second Geneva Convention, article 129 of the Third Geneva Convention and article 146 of the Fourth Geneva Convention. The ‘grave breaches regime’ contains a specific list of crimes that, whenever violated, oblige the state to ‘try or extradite’ the suspected perpetrator. The International Humanitarian Fact Finding Commission, http://www.mffc.org/, was set up for the purpose of conducting such investigations.

dd UN Security Council, Res.978 (§558), Res. 1193 (§559) and Res. 1199 (§560); UN Security Council, Statements by the President (§§561–569).

dd UN Commission on Human Rights, Res.2002/79 (§589).

ff See ICRC’s Customary IHL Rule 158.

gg Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (Economic and Social Council resolution 1989/65;text available at: http://wwwl.umn.edu/humanrts/instree/i7pepi.htm) and the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (General Assembly resolution 55/89, 2000; text available at: http://www2.ohchr.org/englisMaw/investigation.htm). Note that the investigation need not be conducted by a court or even a judicial body. Administrative investigations, where appropriate, may equally comply with the four principles.

hh Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10), chap. IV, sect. E, art. 1.

ii Ibid., commentary to article 7.

jj Case of Almonacid-Arellano et al v. Chile, Inter-American Court of Human Rights, Judgement of September 26, 2006, (Preliminary Objections, Merits, Reparations and Costs), para. 99. See also Official Records of the General Assembly (see footnote 33), Art. 26.

kk Almonacid-Arellano et al. v. Chile, para. 111.

11 See the Preamble to the Rome Statute of the International Criminal Court: “Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.”

mm Prosecutor v. Tharcisse Muvunyi, Judgement, Case No. ICTR-00-55-T, 12 September 2006, para. 459.

nn See Article 3 of the Code of Conduct. See generally the Basic Principles.

oo ICRC Study Rule 14.

pp Rome Statute, Art. 8 (2) (e) (i)–(iv).

qq Rome Statute, Art. 8 (2) (e) (iv).

rr Article 9 (2) ICCPR.

ss Article 9 (3) ICCPR.

tt The ICCPR also provides for a right of compensation for unlawful arrest or detention.

uu A. v. Australia, Human Rights Committee, communication No. 560/1993, CCPR/C/59/D/560/1993, para. 9.2. In considering unlawful remand, the Committee has also highlighted that factors of inappropriateness, injustice and lack of predictability that may render arbitrary an otherwise lawful detention; see Van Alphen v. The Netherlands, Human Rights Committee, communication No.305/1988, CCPR/C/39/D/305/1988.

vv See for instance, A. v Australia, Human Rights Committee, communication No. 560/1993, CCPR/C/59/D/560/1993, para. 9.5.

ww While the state of emergency was lifted on 21 April 2011, the Government did not abolish the SEA, which remains in force under Syrian domestic law.

xx State of Emergency Act, art. 6.

yy Code of Criminal Procedure, Law No. 112 of 1950 as amended, arts. 104 (1) and (2).

zz Legislative Decree No. 55/2011, amending article 17 of the Code of Criminal Procedure.

aaa International Convention on the Protection of all Persons from Enforced Disappearance, 2006.

bbb Article 9 ICCPR.

ccc The Human Rights Committee in its General Comment No 20 (1992), para. 11, on Article 7 of the ICCPR, recognized that safeguards against torture included having provisions against incommunicado detention, granting detainees suitable access to persons such as doctors, lawyers and family members, ensuring detainees are held in places that are officially recognized as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends.

ddd Article 4 (1) AP II, Common Article 3 of the four Geneva Conventions of 1949.

eee ICRC Study, Rule 99.

fff ICRC Study, Rule 123.

ggg Rome Statute, Art. 7 (1) (i).

hhh ICC Elements of Crimes, Article 7(1) (i).

iii Syrian Constitution, Article 53.

jjj Law No. 148/1949 of the Syrian Criminal Code.

kkk Rome Statute, Art. 8 (2) (e) (vii).

lll See CRC Art. 37 (c).

mmm Rome Statute, Art. 8 (2) (e) (v).

nnn General Comment 16, Art. 3.

a This report is to be read together with the Commission’s first report, see A/HRC/20/CRP.1, 27 June 2012.

b The anti-Government activists and many victims and witnesses blamed the killings on Government forces working in concert with Shabbiha from neighbouring villages. The Government in its report blamed the 600–700 “terrorists” for the killings. The commission also considered the possibility that foreign groups were involved.

c On 3 August, the commission received a call from the Geneva Mission of the Syrian Arab Republic offering to arrange interviews with the two witnesses. By the deadline for submission of this report the interviews had not taken place.

d As examples: 1. They failed to describe the location of the main incident, specifically the Abdulrazzak family home; 2. The witness purported to know that in the northern part of the town “terrorists” were distributing ammunition to each other, but elsewhere the witness described her presence as being in the centre near the clock tower or further south during the same time frame; 3-. The witness also stated that the “terrorists” included “strangers who don't belong to our village,” and was able to remember their names individually while the village has 30,000 people, and the whole area of Al-Houla’s population is more than 100,000. It is unclear how she could be so certain of terrorist individual identities-names in the described context; 4. The witness said she saw the burning at the hospital area “when we passed by.” The area around the hospital was in government hands throughout, so it is unclear when and how she was able to reach the given location given the circumstances of the day; 5. She suggested that the armed groups were in fact mentioning the real first names of the groups’ leaders over their radio communications. The commission finds this lacking credibility; 6. The witness described the Al-Sayed family as having been shot from across the street when all other evidence, including by UNSMIS visiting the scene, indicate the victims died from gunshots at close range.

e UNSMIS, international human rights NGOs, journalists and the Col have all conducted interviews during the course of their investigations into the events.

f The commission examined the version of events reported in the Frankfurter Allgemeine Zeitung (FAZ), 7 June 2012, by Rainer Hermann, and by journalist Marat Musin, on Anna news and Russia Today, 2 June 2012, (Available at http://www.youtube.com/watch?v=pyi-tJ_OPPg) both of which blamed the killings on anti-Government armed groups. The commission found these reports relied primarily on the same two witnesses as the Government’s report and not on additional investigation or witnesses in Al-Houla. Moreover, these reports asserted that the Abdulrazzak family had converted to Shiism. The commission confirmed that all members of both families were Sunni and that no one in either family had converted.

g Note Verbale, 281/2012 of 7 June 2012, p.3 (unofficial translation).

a See annex II, paras. 30–42.

b The only exception to this proscription is when the person has been sentenced to death by a lawfully constituted tribunal that provided all fundamental judicial guarantees.

c See annex II.

d Use of the terms ‘civilians’ in this section refers to those not taking direct part in hostilities. See ICRC Study, Rule 6.

e Much like in IHRL, the principle of proportionality is in effect during armed conflict. It prohibits the incidental deaths of civilians that are excessive in relation to the concrete and direct military advantage anticipated. See annex I (Applicable law). See also ICRC Study, Rule 14.

f Dozens of interviewees described the detrimental psychological and social effects of the presences of snipers in the neighbourhood. People feared leaving their houses, but when shelling started they feared staying home. Routine tasks such as shopping, going to work or playing outside became life threatening.

g Regarding the Government’s report, the commission viewed video material wherein one member of the Government’s commission who compiled the report on Al-Qubeir was announcing his defection. Therein he implied that the judiciary had been co-opted into covering up the misdeeds of Government forces and aligned forces. The video could not be authenticated.

h A journalist who visited Al-Qubeir shortly after the incident and who interviewed a person who had come back to retrieve some items, reported his interviewee as saying, “Many young men from the Alawite villages around Al-Qubeir have died fighting for Assad against the rebels. They wanted revenge, and so they took it out on the nearest Sunni village.”

i A more detailed discussion of the attack on Homs has been set out above.

j A more detailed discussion of the events in Al-Qusayr has been set out in annex VI.

k Rome statute, Art. 8 (2) (c) (i). See also annex II.

l See ICRC Customary IHL Study, Rule 1. Rome statute, Art. 8 (2) (e) (i).

m See annex II.

a See Annex II, paras. 30–42.

b See annex V for more details on the events in Tremseh on 12 July.

a See annex I (Applicable law).

b See annex V.