Damascus Center for Human Rights Studies (DCHRS)

Article 15 communication on Crimes against Humanity committed in Syria

 

 Submitted
by:

 –  Damascus Center for Human Rights Studies

 The Law Firm of M. Yaser Tabbara, Chicago, USA

  YASA, International Kurdish Centre for Legal
Studies & Consultancy

  Union of Syrian Kurds in the Netherlands

  INSAN, an international human rights
organization


I.                   
Introduction

 

1.        
The NGOs making this submission have personally
interviewed witnesses of the crimes mentioned in this report, which have
exceeded four hundred (400) interviews conducted on site and more than two
thousand (2000) phone calls and other types of testimonies. The NGO’s have also
engaged a local network of activists in order to obtain reliable and credible
information. Furthermore, they have summarised a selected number of reliable
and publicly available international NGO reports on alleged crimes committed in
Syria in order to corroborate the first hand information they have collected.

 

2.        
The NGOs submit that there is a reasonable
basis to believe that crimes against humanity were committed in the context of
the Syrian popular uprising, in particular crimes against humanity of murder;
imprisonment or other severe deprivation of physical liberty; enforced
disappearance, persecution and Torture. There are so far no national
proceedings implemented by the State to investigate and try those who bear the
responsibility of these crimes. Although on March 19 the state news agency
Syrian Arab News Agency (SANA) reported that the Ministry of the Interior would
form a committee to investigate the “unfortunate incidents” in Daraa, and would
respond with “all measures deemed necessary”, the prospect of seeing this
committee implemented is very slim. Thus, the NGOs making this submission put
the international community on notice that the policy conceived at the highest
echelons of the State to commit crimes against humanity, the gravity of the
crimes as well as the absence of any future prospects for ending the impunity
for their perpetrators should prompt the international community to urgently
act in order to halt the bloodshed.

 

II.
Subject matter Jurisdiction

 

  1. Article 53(1)(a) provides that
    the Prosecutor of the ICC shall consider whether the information available
    to him provides a reasonable basis to believe that a crime within the
    jurisdiction of the Court has been or is being committed.

 

  1. For a crime to fall within the
    Court’s jurisdiction: (i) the crime must be one of the crimes set out in
    article 5 of the Statute (jurisdiction ratione materiae); (ii) the
    crime must have been committed within the timeframe specified in article
    11 of the Statute (jurisdiction ratione temporis); and (iii) the
    crime must satisfy one of the two criteria laid down in Article 12 of the
    Statute.[1]

 

  1. The NGOs submitting this
    communication are cognisant to the fact that the preconditions for the
    exercise of jurisdiction by the Court are not met for the situation in
    Syria. Indeed, Syria is
    not a State party to the Rome Statute and thus the Court cannot exercise
    jurisdiction on the crimes committed on the Syrian territory or by
    nationals of Syria.
    However, the NGOs wish to recall that this situation might change if the
    Security Council was to refer the situation to the ICC, in which case it
    would have jurisdiction on these crimes. The NGOs conceive this
    application as an attempt to pave the way for the future analysis of the
    Court on the horrendous crimes committed therein, and to show to the
    international community that by all accounts these egregious violations of
    human rights constitute crimes against humanity that should be repelled,
    including by prosecuting those who bear the greatest responsibility.

 

III.
Legal characterisation and reasons that the listed crimes fall within the
jurisdiction of the ICC

 

  1. For the reasons set out in this
    submission, the information collected by the NGOs provide a reasonable
    basis to believe that crimes against humanity under article 7 of the
    Statute have been committed in Syria.

 

                (a) Contextual elements of
crimes against humanity

 

  1. As recalled by the Pre Trial Chamber
    II of the ICC in its Decision on the Authorization of an Investigation in
    Kenya [2],
    the contextual elements of crimes against humanity are set out in the
    Chapeau of article 7 (1) as follows:

 

‘crimes
against humanity’ means any of the following acts when committed as part of a
widespread or systematic attack directed against any civilian population, with
knowledge of the attack.

 

Article
7(2)(a) of the Statute further indicates that:

 

‘[a]ttack
directed against any civilian population’ means a course of conduct involving
the multiple commission of acts referred to in paragraph 1 against any civilian
population, pursuant to or in furtherance of a State or organizational policy
to commit such attack.

 

  1. PTC II interpreted these
    paragraphs as requiring five contextual elements for crimes against
    humanity: (i) an attack directed against any civilian population, (ii) a
    State or organizational policy, (iii) the widespread or systematic nature
    of the attack, (iv) a nexus between the individual act and the attack, and
    (v) knowledge of the attack.

 

                (i) Attack directed against any
civilian population

 

  1. In the Decision on the
    Authorization of an Investigation in Kenya, PTC II derived from the
    Statute and the elements of crimes the conclusion that the attack “consists
    of a course of conduct involving the multiple commission of acts referred
    to in article 7(1)”. Furthermore, it recalled that the term is not
    restricted to “a military attack” and rather refers to “a campaign or
    operation carried out against the civilian population”.[3]

 

  1. When defining the term
    “directed against any civilian population”, the Chamber considered that it
    requires showing that the attacks were directed against the civilian
    population as a whole and not against randomly selected individuals.

 

  1. Furthermore, the Chamber
    specified that it need not be satisfied that the entire civilian
    population of the geographical area in question was being targeted.
    However, the civilian population must be the primary object of the attack
    in question and cannot merely be an incidental victim. The term “civilian
    population” refers to persons who are civilians, as opposed to members of
    armed forces and other legitimate combatants.[4]

 

  1. It appears from the available
    information that most of the attacks carried out by the Syrian regime were
    targeting civilians in the cities where the uprising took place. The
    population targeted by these attacks was unarmed civilian people who took
    on spontaneously to the streets in Deraa, Damascus,
    Homs, and
    other cities in order to express their protest against the repressive
    regime and to call for a change in the state policy. Several videos shown
    on media and social networks show hundreds of demonstrators rallied in the
    main squares or streets of these cities, chanting “selmia, selmia” [peaceful,
    peaceful], opening their shirts to show that they carried no arms, etc.

 

  1. Information collected by local
    and international NGOs testify that the civilian groups targeted were at
    first all the protesters that took up to the streets. Security forces opened
    fire on these demonstrators in an arbitrary and indiscriminate way. The
    second pattern of attacks against the civilian population was through vast
    campaigns of arbitrary arrests, that targeted real or perceived opponents
    or even people who had no history of opposition to the government but
    simply demonstrated spontaneously against the regime during the uprising.

 

(ii)
State or organizational policy

 

  1. In addition, article 7(2)(a) of
    the Statute imposes the requirement that the attack against any civilian
    population be committed “pursuant to or in furtherance of a State or
    organizational policy to commit such attack” .

 

  1. The introduction to elements of
    article 7, when explaining the meaning of policy states that “policy to
    commit such attack” requires that the state or organization actively
    promote or encourage such an attack against a civilian population. The
    footnote to the paragraph states “a policy, which has a civilian
    population as the object of the attack would be implemented by State or
    organizational action. Such a policy may, in exceptional circumstances, be
    implemented by a deliberate failure to take action, which is consciously
    aimed at encouraging such attack. The existence of such a policy cannot be
    inferred solely from the absence of governmental or organizational
    action”.

 

  1. In the Case The Prosecutor v. Katanga
    and Ngudjolo Chui, Pre-Trial Chamber I found that this requirement:

 

[…]
ensures that the attack, even if carried out over a large geographical area or
directed against a large number of victims, must still be thoroughly organised
and follow a regular pattern. It must also be conducted in furtherance of a
common policy involving public or private resources. Such a policy may be made
either by groups of persons who govern a specific territory or by any
organisation with the capability to commit a widespread or systematic attack
against a civilian population. The policy need not be explicitly defined by the
organisational group. Indeed, an attack which is planned, directed or organised
– as opposed to spontaneous or isolated acts of violence – will satisfy this
criterion.
[5]

 

  1. In relation to the term
    “policy”, the Majority recalled in particular the criteria used by the
    International Criminal Tribunal for the former Yugoslavia (“ICTY”) in the
    case against Tihomir Blaskic, in which the ICTY Trial Chamber held that
    the plan to commit an attack:

 

[…]
need not necessarily be declared expressly or even stated clearly and
precisely. It may be surmised from the occurrence of a series of events, inter
alia:

       
The general historical circumstances and the
overall political background against which the criminal acts are set;

       
The establishment and implementation of
autonomous political structures at any level of authority in a given territory;

       
The general content of a political programme,
as it appears in the writings and speeches of its authors;

       
Media propaganda;

       
The establishment and implementation of
autonomous military structures; the mobilisation of armed forces;

       
Temporally and geographically repeated and
co-ordinated military offensives;

       
Links between the military hierarchy and the
political structure and its political programme;

       
Alterations to the "ethnic"
composition of populations;

       
Discriminatory measures, whether administrative
or other (banking restrictions, laissez-passer,…);

       
The scale of the acts of violence perpetrated –
in particular, murders and other physical acts of violence, rape, arbitrary
imprisonment, deportations and expulsions or the destruction of non-military
property, in particular, sacral sites.
[6]

 

  1. The NGOs submit that the
    attacks on the civilian population in Syria were not isolated or
    spontaneous acts of violence, but were committed pursuant to the policy of
    the State of Syria under the leadership of President Bashar al Assad.  This policy is to launch violent attacks
    against political opponents or persons perceived to support the political
    opponents in order to retain power by all means. This policy is further
    evident due to the following:

 

  1.  
    1. The policy of the State is
      subject to the political and contextual background on the nature of the
      Syrian police state, i.e. the implementation of the Emergency law since
      1963; the control of the President and his close relatives on the State
      apparatus; media control, etc.

 

  1.  
    1. The policy of the State is
      also evident through the consistent denial of the crimes committed by the
      security forces and the attempt to portray protesters as terrorists
      groups, armed gangs or foreign elements.

 

  1.  
    1. The policy of the State was
      clearly demonstrated by several official communiqués circulated as “top
      secret” documents throughout the Syrian Security Apparatus different
      branches, and leaked to various NGO’s. These communiqués identify violent
      means to crush protesters. 

 

  1.  
    1. The policy of the State can be
      further exemplified by the attempts to conceal evidence of the commission
      of crimes by:

 

§   Confiscation of
cellular phones and other recording devises from victims and witnesses of the
crimes

§   Imposition of a
total blackout on foreign media

§   Imposition of
sieges on some cities. During the siege, a large-scale campaign of arbitrary
arrests was implemented, further demonstrating the policy of the State to
stifle dissent and deter any future demonstration.

 

  1.  
    1. The discovery of mass graves
      in several locations in the Horan region and Homs also shows that there
      was a policy of the State of Syria which involved the use of extensive
      means for the burial of the victims. The existence of mass graves is an
      example of the organised character of the attack on the civilian
      population, involving the mobilisation of state apparatus, various
      security forces and other institutions in order to carry out the policy.

 

  1.  
    1. The deployment of heavy
      armament inside the cities of Deraa, Banias, Latakia, Homs, Idlib and
      other smaller cities and villages across Syria demonstrates a State
      policy by deploying official Syrian Army divisions to deal with the
      protestors en masse.

 

(iii)
Widespread or systematic nature of the attack

 

  1. As held by Pre‐Trial Chamber II
    of the ICC, the reference to a widespread or systematic attack has been
    interpreted as excluding isolated or random acts from the concept of
    crimes against humanity.[7]
    Only the attack, and not the alleged individual acts are required to be
    “widespread” or “systematic”.[8]
    In this regard, the adjective “widespread” refers to “the large‐scale
    nature of the attack and the number of targeted persons”, while the
    adjective “systematic” refers to the “organised nature of the acts of
    violence and the improbability of their random occurrence”.[9]
    The Chamber, moreover, opined that the existence of a State or
    organisational policy is an element from which the systematic nature of an
    attack may be inferred.[10]
    The consequences of the attack upon the targeted population, the number of
    victims, the nature of the acts, the possible participation of officials
    or authorities or any identifiable patterns of crimes, could be taken into
    account to determine whether the attack satisfies either or both
    requirements of a ‘widespread’ or ‘systematic’ attack."

 

  1. Based on the available
    information, there is a reasonable basis to believe that the attacks
    directed against the civilian population in Syria were both widespread and
    systematic.

 

  1. The attacks followed these main
    patterns:

§   The launching
of large scale military operations on towns and neighbourhoods identified as
hubs of protests. For example On April 25, security forces and military
vehicles moved into the city of Daraa using military vehicles, including
numerous tanks and armoured personnel carriers (APCs), under a cover of heavy
gunfire that lasted unabated for about 16 hours (see below for more details).
The security forces occupied all neighbourhoods in Daraa, imposed checkpoints,
and placed snipers on the roofs of buildings in many parts of the city. They
imposed a siege on the city, cut off electricity and all means of
communications, and prevented any movement by opening fire on anyone who tried
to leave their house. Once they had established full control of the city, the
security forces then proceeded to arrest hundreds of men from their homes. This
pattern would be repeated in a number of places, with varying degrees of
military involvement. For example it was followed in Douma, on the 25th
of April. The same pattern of conduct was also followed in Zabadani near Damascus, on the 1st
of May. On the 6th of May, the army and security forces using
armoured vehicles and tanks, surrounded the coastal town of Banyas and they entered under cover of heavy
gunshot.

§   Security forces
also placed snipers on the roofs of buildings in the above mentioned cities.
The snipers were apparently clearly instructed to implement a shoot to kill
policy, as they were targeting vital body organs. Several testimonies collected
from the residents of these cities and examinations of the entry points of
bullets that victims were subjected to corroborate evidence of the instructions
given to snipers.

§   The State conducted
a campaign of arbitrary arrest in all the cities under siege. At times, they
resorted to intimidation of the families of political opponents and even
detained them in order to obtain information on the whereabouts of the
opponents.

 

  1. On the basis of the available
    information, the NGOs consider that at a minimum the following conduct has
    been committed:
  1.  
    1. murder constituting a crime
      against humanity under article 7(1)(a) of the Statute;
    2. imprisonment or other severe
      deprivation of physical liberty in violation of fundamental rules of
      international law under article 7 (1) (e) of the Statute;
    3. enforced disappearance of
      persons under article 7 (1) (i) of the Statute and
    4. persecution under article 7(1)
      (h) of the Statute.
    5. Torture under article 7(1) (f)
      of the Statute.

 

  1. Thus far, the submitting NGO’s
    documented more than 1168 cases of death from across Syria, as well as
    more than 3000 cases of injury, in addition to more than 893 cases of
    forced disappearances and 11000 cases of arbitrary
    detention, all since March 15th of this year. A mass grave was
    also discovered in Daraa which contained 13 bodies, including bodies of
    children, in addition to significant indications of other 7 mass graves in
    Homs and Horan regions. The methodology of documentation which was
    followed by the reporting NGO’s is the Oxford Research Group Protocols. Witnesses
    also told the reporting NGO’s that they and other detainees were subjected
    to various forms of torture, including torture with electro-shock devices,
    cables, and whips. Most also said they were held in overcrowded cells and
    many said they were deprived of sleep, food, and water, in some cases, for
    several days. Some said they were blindfolded and handcuffed the entire
    time.

 


[1] Prosecutor v. Jean-Pierre Bemba Gombo,
“Decision on the Prosecutor’s Application for a Warrant of Arrest against
Jean-Pierre Bemba Gombo”,
ICC-01/05-01/08-14-tENG, 17 July
2008, para. 12.

[2]
Pre Trial Chamber II,
Decision Pursuant to Article 15 of the Rome Statute
on the Authorization of an Investigation into the Situation in the Republic of
Kenya, 31 March 2010, ICC-01/09, para.77-78,
http://www.icc-cpi.int/iccdocs/doc/doc854287.pdf

[3]
Pre Trial Chamber II,
Decision Pursuant to Article 15 of the Rome Statute
on the Authorization of an Investigation into the Situation in the Republic of
Kenya, 31 March 2010, ICC-01/09-19-Corr, para.80.

[4]
ICC-01/09-19-Corr,
para.82.

 

[5]
Pre-Trial Chamber I,
Decision on the confirmation of charges, ICC-01/04-01/07-717, para.

396. See also
Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome
Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo,
ICC-01/05-01/08-424, para.

81. See also ICTY,
Prosecutor v. Tadic, Case No. IT-94-1-T, Judgement, 7

May 1997, para. 653;
R. Dixon, C. K. Hall, "Article 7", in O. Triffterer (ed.). Commentary
on the

Rome Statute of the
International Criminal Court: Observers’ Notes, Article by Article, 2^^^ ed. –

(Munich etc.:
C.H.Beck etc., 2008), p. 236.

[6] ICTY, Prosecutor v.
Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000, para. 204.

[7] KENYA para 94

[8] KENYA para 94

[9] KENYA para 95

[10] ICC01/0501/0814tENG,
para.
33.