According to recent reports from human rights organizations and the media, mass graves have been discovered outside Syria’s capital, Damascus, containing the bodies of nearly 100,000 Syrians.
These reports suggest that the regime of former President Bashar al-Assad is responsible for the torture and execution of these individuals, as reported by Al Jazeera.
One of the mass graves is located in the Al-Qutaifah area, 40 kilometers from Damascus, and is just one of many used by Assad’s regime over the years to eliminate political opponents.
Assad’s actions, which began as part of a systematic policy starting in 2011 when the popular revolution for regime change erupted, have included widespread human rights abuses, including torture and mass executions.
Legal Path to Accountability
The first step in holding accountable those responsible for these atrocities is filing the relevant charges before courts competent to investigate such violations, followed by investigations into the crimes they are accused of committing.
UN Special Rapporteur on Torture, Alice Jill Edwards, has stated that it is well-documented that Assad’s regime tortured thousands of prisoners, using methods that included electric shocks and sexual assaults.
In an interview with Al Jazeera, Edwards confirmed that she had compiled a full list of these accusations, which includes specific examples of the regime’s actions. She also emphasized her meetings with the International Criminal Court (ICC) to ensure justice for the victims and survivors.
Edwards further noted that Russia, which is currently hosting Assad (having granted him asylum), is legally obligated to either prosecute Bashar al-Assad or hand him over to the new authorities in Syria.
Documenting the Crimes
Since 2011, Assad’s regime has escalated its crimes against civilians who initially participated in protests demanding better living conditions, later calling for regime change due to the violence used against demonstrators.
Human rights organizations and research centers have been actively working to document these crimes. “Over 14 years of work, we have documented numerous crimes and a series of orders that could only be issued by Bashar al-Assad himself, such as bombings, killings, and the use of barrel bombs and chemical weapons against civilians in Syria,” said Fadel Abdulghani, director of the Syrian Observatory for Human Rights, a network of human rights groups.
Speaking to Al Jazeera, Fadel confirmed that there were “tonnes of evidence” documenting hundreds of thousands of cases, in addition to thousands of documents from the regime itself. “There is no doubt that Bashar al-Assad will face accountability and be sentenced based on the evidence through a fair process,” he said. “We will not accept him being tortured or forcibly disappeared as he did with tens of thousands of Syrians.”
Reforming Syria’s Legal System
The director of the Syrian Network for Human Rights emphasized the need for the new Syrian government to do the following:
- Draft a new constitution, as the current one was created by Assad’s regime in a manner that violates human rights, concentrating all power in the executive branch represented by the president.
- Overhaul the judiciary in Syria, as the current courts are unqualified and lack jurisdiction to hear war crimes and crimes against humanity cases involving Assad.
- Ratify the Rome Statute of the International Criminal Court (ICC), placing Syria under its jurisdiction, thus enabling the prosecution of crimes committed in Syria and bringing those responsible to justice.
Possibilities for Prosecution of Assad
The fact that Russia and Syria are not signatories to the Rome Statute, the treaty under which the International Criminal Court was established in 1998, presents a challenge for bringing Bashar al-Assad’s regime under the court’s jurisdiction. Therefore, alternative legal routes must be pursued to hold accountable those responsible for crimes against Syrians.
Raed Abu Badawiyah, a professor of international law at the Arab-American University, explains these options. “If we are talking about accountability through international mechanisms, there is more than one way. However, the most serious and effective option, from my perspective, is for the UN Security Council to refer the case to the International Criminal Court,” he said.
Abu Badawiyah explained to Al Jazeera that this route is significant because it compensates for Syria’s non-signatory status to the Rome Statute. Moreover, Security Council action in this matter would fall within the court’s jurisdiction, enabling the referral of cases related to war crimes, genocide, or even religiously-motivated crimes.
However, the challenge with this option remains the veto power that Russia can exercise to block any UN resolution aiming to punish Bashar al-Assad and his regime.
The international law professor also suggests that Russia could eventually choose to withdraw its protection of Assad in exchange for political concessions from the West, including Europe and the United States.
Other Legal Routes
Regarding other potential avenues, Abu Badawiyah believes that if new evidence—such as cases of mass executions, torture, or the hiding of bodies in mass graves—is discovered and confirms widespread human rights violations, there could be an opportunity to pursue this case at the International Court of Justice, following a principle upheld by South Africa in its case against Israel.
Taj al-Din al-Huseini, an international relations professor at Mohammed V University in Rabat, adds another option outside the framework of international institutions. He believes there is a possibility that Bashar al-Assad could face criminal charges under domestic legislation in countries, whether on their territory or on behalf of the state to which they belong.
Al-Husseini notes that there is an agreement from which the new Syrian administration can benefit—the treaty signed between Syria and Russia in 2022 regarding the extradition of wanted individuals. In this case, if Syria chooses to prosecute Bashar al-Assad, it has the right to submit a request to Russia under this agreement, as it is an international treaty, and state sovereignty does not end due to a revolution or a military coup.
Asylum in Russia
When it comes to the protection that Russia may offer Bashar al-Assad after granting him asylum, there are numerous legal details both from a formal perspective and in terms of international law.
The international relations professor at Mohammed V University said that Russia’s decision to grant Bashar al-Assad “asylum for humanitarian reasons,” is, from a formal standpoint, a political act. This decision was made by the Russian president and has not gone through the administrative procedures required for political asylum requests in other countries.
Thus, this decision falls under the jurisdiction of the Russian president in dealing with such cases.
Al-Huseini added that this asylum is legally unacceptable. “If we consider Article 14 of the Universal Declaration of Human Rights, which grants the right to asylum in cases of persecution, racial or ethnic reasons, or certain conflicts, then this does not apply to individuals accused of crimes against humanity, torture, genocide, or other crimes defined by the International Criminal Court’s statute.”
