Written by Josh Macey, Paul Strauch, Mitzi Steiner & Nathaniel Zelinsky†
Just over a month ago, a Swedish court became the first court anywhere to convict an individual associated with the Assad regime for war crimes committed during the current Syrian conflict. The conviction highlights a stark reality. With peace negotiations stalled and Assad’s future seemingly secure, war crime prosecutions conducted abroad have become the only feasible means of holding the Assad regime accountable for war crimes committed during the Syrian civil war. Yet Russia’s Security Council veto makes an internationally-sanctioned war crime tribunal a pipe dream. As a result, domestic prosecutions in European courts remain the only immediately available mechanism for bringing perpetrators of the conflict to justice.
The Swedish conviction builds on a handful of prosecutions that have already taken place. Of the numerous obstacles to prosecuting Syrian soldiers for war crimes, one of the greatest challenges is marshalling the evidence necessary to sustain a conviction. The problem is not simply that the evidence does not exist. It is also that much of the available evidence remains siloed among numerous non-governmental organizations (NGOs) and domestic war crime prosecution offices across Europe. And, because so much of that evidence was disclosed in confidence, these groups are reluctant to share the information they do have. As a consequence, the process of assembling diffuse pieces of evidence can be prohibitively labor intensive for domestic European prosecution units, which are often under-resourced and under-staffed.
This Forum essay proposes a solution. By creating a secure, centralized database that allows war crimes evidence from disparate NGOs to be organized in one centralized electronic platform, prosecutors can more efficiently gather evidence of Syrian war crimes. As noted by a recent Human Rights Watch report, prosecutors’ offices in Germany, Sweden, and the Netherlands have already begun to work together. This essay suggests that a war crimes “Wiki” would more effectively allow countries to gather evidence of war crimes. This Wiki should facilitate interaction with NGOs, promote contributions by war crime victims, and enable individual jurisdictions to selectively redact information that they determine they are unable to share. Ultimately, the Wiki could help jumpstart new prosecutions by significantly reducing the up-front costs of gathering evidence. The project would thereby support long-term efforts to establish accountability for perpetrators of Syrian war crimes. And, by allowing individual prosecutorial offices to input information themselves, it would do so without exposing informants to retribution.
(1) The Problem: The Diffuse Holding of War Crimes Evidence
Numerous NGOs and individual actors have worked hard to find and preserve evidence of war crimes committed in Syria. The Caesar photos, smuggled out of the country by an ex-military police officer, have been referred to by Stephen Rapp, former U.S. Ambassador at Large for War Crimes, as “the best evidence that I’ve seen in my career.” Various NGOs, including the Commission for International Justice and Accountability (CIJA), the Syria Justice and Accountability Center (SJAC), REDRESS, and smaller local European organizations hold physical evidence such as regime documents and testimony from victims that can stand up in criminal court. Between these various evidence sources, Rapp believes that “when the day of justice arrives, we’ll have much better evidence than we’ve had anywhere since Nuremberg.”
Suspected Syrian war criminals have, and might in the future, enter European jurisdictions through the mass refugee flow in an attempt to seek asylum. Other war criminals could be European citizens themselves who traveled to Syria, or militants from Syria who have found another way to enter Europe. Equally, the refugee flow may prove critical in the accumulation of evidence, as some refugees may help provide eye-witness accounts of crimes and useful leads regarding alleged perpetrators. Given this, domestic prosecutions, undertaken through universal jurisdiction and domestic statutes become a promising means of ensuring accountability. According to Géraldine Mattioli-Zeltner, advocacy director of the Human Rights Watch’s International Justice Program, “national prosecutions . . . [are] the only kind of accountability we have.” Indeed, the aforementioned Syrian war crimes perpetrator recently prosecuted in Sweden was himself a refugee, who had arrived three years prior in Sweden.
European courts have a credible history of bringing foreign war criminals to justice. The successful convictions of high-level Rwandan genocidaires such as Pascal Simbikanga in France and the Vincent Ntezimana in Belgium illustrate that domestic prosecutions are feasible. This model could be duplicated to bring some measure of justice to Syria. In fact, many EU member States have already begun investigating Syrian war criminals. France is currently analyzing the Caesar photos as the basis for prosecutions of members of the Assad regime for crimes against humanity. Germany has had three successful prosecutions in the last two years, and the German police have launched investigations of Syrian refugees. The Dutch have acknowledged finding thirty suspected war criminals, including ten Syrians, among their refugee flow in 2015 alone. Sweden has successfully prosecuted two members of the Syrian opposition, and has arrested other suspects charged with committing international crimes in Syria.
However, the prosecution units of EU member States are struggling to piece together cases on Syrian war crimes. Interviews with several executives of data-gathering NGOs working in Syria revealed that evidence of Syrian war crimes is diffusely held among a broad set of domestic prosecution units, NGOs, and individuals and is therefore difficult to assemble. NGOs may be disinclined to share information, partly due to a need to protect their value in the eyes of donors. As noted by one NGO executive, “this is a very competitive market. The human rights documenting field is overcrowded.” Further, the NGOs involved possess different organizational mandates, which limits the degree to which they naturally coordinate. Some NGOs focus on accountability for low-level officials, which requires information such as photos of bodies to prove the nature of a crime. Meanwhile, other NGOs such as CIJA focus on “linkage evidence,” which contextualizes crimes and ties particular atrocities to high-level officers and Assad himself. NGOs also gather data in different regions within Syria, forcing prosecutors to contact separate organizations for region-specific information. Equally, prosecution units may have difficulty locating evidence held by less established NGOs, with which they do not have a preexisting relationship. Specifically, smaller NGOs tend to share information only with the authorities from their own national jurisdictions.
The complex ways in which evidence of Syrian war crimes is stored present a significant obstacle to domestic prosecution offices. For these offices, interactions with NGOs is often ad hoc. It can be difficult to identify the information that the NGOs do possess. For example, the Netherlands currently pursues Syrian war crimes cases by looking to publically available sources of evidence, such as YouTube and Facebook; war crimes prosecutors gather information without knowing beforehand whether they will be able to establish jurisdiction over evidence of particular crimes. The process of sifting through the vast amount of available information to target specific cases is labor and resource intensive. As a result, prosecutors end up with more information than they can process and in some cases may be cultivating evidence that another unit has already collated. Since prosecutors do not necessarily know where to turn for appropriate evidence, many war crimes cases that could be brought with readily available evidence may go unprosecuted.
(2) The Solution: A War Crimes Wiki to Facilitate Domestic Prosecutions
A Wiki database would help to solve these evidentiary gaps. A database would serve to collate and organize the enormous amount of evidence that already exists in the hands of domestic prosecution units, NGOs, and Syrian victims. Once established, a Wiki could help prosecutors looking to build a case by allowing them to search through these various data holdings. At the earliest stages of case development, a Wiki database could help prosecutors identify where to devote their limited resources and enhance their ability to bring a greater number of successful prosecutions. As Nerma Jelacic, Deputy Director of CIJA, pointed out, “before prosecutors select a case it could be useful for them to understand what existing evidence might already be in the possession of NGOs.” According to Wieger Veldhuis, a prosecutor in the international crimes division of the Dutch national public prosecution service, “a database that we could search in to see if there is relevant data or if there are witnesses that can talk about the things we are investigating . . . would be really helpful.” By reducing the time required to identify where evidence might be held, a centralized and searchable database could help prosecutors identify winnable cases. According to a recent HRW interview, Germany has already initiated the idea of a database to help overcome these challenges.
A war crimes Wiki could also help prosecutors identify the kind of evidence needed to link crimes to specific perpetrators. Imagine, for instance, that a prosecutor wishes to bring a case against a Syrian helicopter pilot for dropping barrel bombs. The prosecutor would need to link the pilot to a specific act of bombing and also prove that victims died; over time, the prosecutor could also construct a larger narrative of how barrel bombing has led to the wholesale slaughter of civilians throughout the war. At present, at various stages in the prosecution, a prosecutor may need to personally liaise with different NGOs and prosecution offices to identify which organization possesses useful information for the case.
With a war crimes Wiki, the prosecutor of the hypothetical pilot could use targeted database searches to identify whether these various forms of evidence are held by NGOs or fellow prosecution units and to locate the best version of that evidence available. This would expedite the MLA process between prosecution offices, since units would know what evidence to request, as opposed to needing to prod peer units to determine whether they have relevant information. In addition, prosecution units could indicate whether they currently have an investigation into a particular individual underway, which could help aid peer countries in determining whether to pursue a case. The database could thus help both at the preliminary stages of an investigation, when prosecutors are determining whether to bring a case forward, and at latter stages, once prosecutors are determining the scope of an ongoing prosecution.
To ensure the success of a Wiki, and to overcome the inclination of NGOs to house evidence separately, it would be critical that the Wiki be coordinated by a trusted and centralized party. Already, the war crimes units of European States are engaging in meaningful collaboration about ongoing and potential trials through Eurojust, a judicial cooperation unit initiated by the European Council. In particular, within Eurojust, the Genocide Network serves as a contact point for collaboration by European national authorities investigating and prosecuting genocide, crimes against humanity, and war crimes. At Genocide Network meetings, prosecutors share not only views and strategies, but also have the opportunity to engage in a “who has what” analysis regarding where various pieces of evidence sit. The Wiki will embolden and hasten this process. Thus, Eurojust or EUROPOL, which coordinates international investigations across the EU, could serve as the institutional home for the Wiki and provide monitoring functions regarding information posted to the database.
Beyond deciding who would operate the platform, NGOs and prosecution units must delineate the terms of a Wiki, including how evidence should be tagged, who would have secure access, and who could contribute information. For example, evidence could be tagged by cross-referencing the location of an incident, the nature of the crime, the names of perpetrators, or other key categories. To be sure, as a practical matter, any database of this kind must be designed to ensure compliance with domestic and European privacy laws and norms. European privacy laws are stringent, restricting what information both governmental and non-governmental affairs can share. Further, some NGOs refrain from sharing evidence with countries that cooperate with the Syrian intelligence apparatus or who use evidence to exclude asylum-seekers generally. As a result, an NGO might be comfortable sharing evidence with a Swedish prosecution unit, but not with its German counterpart. A well-constructed database would limit which countries could search a particular NGO’s information and under what circumstances.
Further, the Wiki need not provide prosecutors with immediate access to all available evidence. Prosecutorial units will still retain ultimate say over whether information in their exclusive possession should be made available. For example, NGOs could decide to post summaries of the information they have available on particular individuals or atrocities, rather than post all of their evidence, to protect the identity of witnesses. As Ambassador Rapp suggested in an interview with the authors, the use of “abstracts” to summarize evidence could help overcome much of the confidentiality concerns. Certainly some evidence may be too sensitive to describe even in summary form. For this more sensitive material, the database could inform prosecutors of the NGO holding the evidence without providing specifics that could potentially implicate informants and at-risk civilians. In effect, rather than act as an encyclopedia of Syrian war crimes, the Wiki could serve as an index to help domestic prosecutors find the sources most useful to them. Prosecutors would then be able to contact NGOs or offices with specific questions about discrete issues, places, regions, or perpetrators.
Domestic courts in countries offering asylum to Syrian refugees remain the most practical forum for bringing some measure of justice to victims of Syrian war crimes. The success of these prosecutions depends on the ability of prosecutors to gather evidence held by NGOs, individual actors, and domestic prosecution units. A war crimes Wiki would provide officials with a credible platform through which to organize and collect evidence, thus lowering the costs of trial preparation and prosecution. Moreover, once consolidated, evidence could beget more evidence, as prosecutors are able to flip low-level officers and witnesses are brought into court. In addition, members of the Assad regime, fearful of being held accountable, might volunteer testimony in exchange for leniency. As noted by CIJA’s founder Bill Wiley, “justice for core international crimes in Syria is coming, and it’s coming a lot sooner than I think most people maybe realize.” Thus, while the international prosecution of high-level Syrian war crime perpetrators may remain a far-off goal, a Wiki could help domestic courts facilitate and realize accountability in the Syrian conflict today.
† The authors would like to thank Professor Harold Koh and Ambassador Stephen Rapp for invaluable guidance regarding the idea of a War Crime Wiki. We are also grateful to the NGO representatives, war crimes experts, and European prosecutors we interviewed over the course of our research.
 From interview conducted by authors.