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Ukraine and Impunity

Who will ever forget the partially buried bodies of the Mayor of Bucha and his family on the news last weekend. If you have been shocked by these grisly images, you will want to know who is going to be held to account for these war crimes and how.


Without regime change in Russia, it seems a remote possibility. However, the example of Syria demonstrates how determined the EU is to pursue war crimes wherever they have occurred.


Back in 2013, I read about what are called the ‘Caesar photos’. These were taken by prison guards in Syrian prisons. They leaked out and were displayed across the world at exhibitions to demonstrate the cruelty of Assad’s regime.


They depicted war crimes. Prisoners of war were clearly treated appallingly and many disappeared never to be seen again. I arranged for GOAL to bring the Caesar photos to Dublin and they were exhibited in the Royal Hibernian Gallery.


A friend of mine, Ahmed, an engineering graduate from the University of Aleppo, had spent time in one of Assad’s prison. He told me about being kept in darkness for 23 hours a day and terrible torture.


So did the perpetrators of these crimes get away with it?


Almost but not quite.


In the background, various NGOs and UN agencies had been carefully gathering and preserving evidence. The evidence was gathered in case a national or international court came looking to support a prosecution. The expectation was that eventually those at the top of the Syrian regime would be brought before an international tribunal to account for their many misdeeds.


As we know, there is no international tribunal on Syria but there are many other ways in which Syrian war criminals can be held to account.


The International Criminal Court was set up in 1998 under the Rome Statutes. The crucial difference between Ukraine and Syria is that Syria is not a signatory to the International Criminal Court while Ukraine is. This means that prosecutions in the ICC can prosecute offences committed in Ukraine but not in Syria.


The US, Russia and China have not ratified the Rome Statutes (three out of the five permanent members of the UN Security Council). Donald Trump even signed an Executive Order imposing sanctions on ICC personnel.


In January, in a court in Koblenz, Germany, a senior Syrian government official was found guilty of crimes against humanity based in part on the ‘Caesar photos’ as well as the concept of universal jurisdiction.


‘Universal jurisdiction’ means that if the crimes are sufficiently horrendous, it doesn’t matter where the offence was committed. This has resulted in the arrest of members of IS in the EU and allowed prosecutions of Rwandans involved in the 1994 genocide.


Apart from these approaches to fighting impunity there is the decision of the Dutch government in 2020 to initiate an action against Syria under the UN Convention on Torture based on allegations of torture, murder and the use of chemical weapons. This kind of improvisation is what is needed.


Finally, there is the UN Evidentiary Mechanisms. In Syria, this is called the International Impartial and Independent Mechanism for Syria (IIIM). This is responsible for gathering and analysing evidence in preparation for future prosecutions.


In March 2021, together with other MEPs, I tabled a resolution calling on the EU to publish an Action Plan on Impunity. The EU should focus on evidence sharing between Member-States and the UN mechanisms. Already, there are many Ukrainians in the EU whose evidence will be important for future prosecutions.


I sincerely hope that the terrible events in Bucha will finally spring the EU into action.


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