An End to Impunity? The General Assembly’s Groundwork for a Syrian Tribunal

By Courtney McCausland

In my last blog post, War Crimes+ in Syria and Iraq, I discussed the possibility of the formation of an ad hoc tribunal to address the ongoing violations of the laws of armed conflict occurring in that region. In the intervening weeks since that blog post the General Assembly of the United Nations has voted on a resolution that appears to begin laying the groundwork for this course of action.

On December 21, 2016 the General Assembly “adopted a draft resolution on [the] ‘International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011’.”[1] The UN Human Rights Council created the existing Independent International Commission of Inquiry on the Syrian Arab Republic in 2011[2] and this new Mechanism will collaborate with the Commission to

consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses and to prepare files in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law.[3]

The resolution indicates a commitment to action on the part of the United Nations; it is an escalation beyond oral rejection of impunity. This Mechanism will be investigating and preparing files for the purpose of prosecution.

The language of the draft resolution calls to mind the UN Mechanism for International Criminal Tribunals (MICT), which continues to conclude the functions of the International Criminal Tribunals for Rwanda and the Former Yugoslavia.[4] But this draft resolution does not mandate the creation of a new tribunal such as the MICT, nor does it even advocate for the creation of such an organ.[5] The draft resolution creates the infrastructure that will support investigation and prosecution by any governing body that has jurisdiction over the crimes that have taken place in this conflict.[6] Its language does, however, notably appear to acknowledge the possibility of the creation of an international tribunal and to grant legitimacy to its creation by explicitly anticipating future jurisdiction.[7]

Domestic courts, particularly in post-conflict settings, often lack capacity or face other serious barriers when addressing violations of international law.[8] International courts may operate independently of domestic courts, but may also work alongside their domestic counter-parts, bringing a wide array of resources to help address gaps in impunity, targeting particularly the high-ranking perpetrators.[9] The UN’s commitment to action and prosecution, whether domestic or international, is therefore promising and seems to indicate an international call for justice in a humanitarian crisis that has been raging for nearly six years.

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[1] General Assembly Takes Action on Second Committee Reports by Adopting 37 Texts, United Nations Meetings Coverage and Press Releases (Dec. 21, 2016),

[2] Independent International Commission of Inquiry on the Syrian Arab Republic, United Nations Human Rights Office of the High Commissioner, (last accessed Jan. 22, 2017).

[3] G.A. U.N. Doc. A/71/L.48 (Dec. 19, 2016); General Assembly Takes Action on Second Committee Reports by Adopting 37 Texts, supra note 1.

[4] About the MICT, United Nations Mechanism for International Criminal Tribunals, (last accessed Jan. 22, 2017).

[5] G.A. supra note 3.

[6] Id.

[7] Id.

[8] See Kenyans for Peace with Truth & Justice, Domestic Prosecutions of International Crimes: Lessons for Kenya (2015).

[9] Id. at 2-4.