viernes, julio 10, 2020
 
Nicolas Boeglin

UN GENERAL ASSEMBLY ADOPTS A RESOLUTION ESTABLISHING AN INTERNATIONAL INVESTIGATION MECHANISM IN SYRIA ON GRAVE VIOLATIONS OF HUMANITARIAN LAW AND HUMAN RIGHTS

UN GENERAL ASSEMBLY ADOPTS A RESOLUTION ESTABLISHING AN INTERNATIONAL INVESTIGATION MECHANISM IN SYRIA ON GRAVE VIOLATIONS OF HUMANITARIAN LAW AND HUMAN RIGHTS

Picture of airstrikes on Aleppo, from the article: End Abusive Invocation Of ‘Self-Defence’ In Response To Terror, published in Canada, with the following indication:”Smoke rises after U.S.-led coalition airstrikes hit DAESH positions in Aleppo, Syria

On December 21st, UN General Assembly voted a resolution (A/RES/71/248) establishing an International Mechanism of Accountability for crimes committed since 2011 in Syria (see UN official press release).

THE ORIGINS OF THE RESOLUTION

The resolution was adopted by 116 votes in favour, 16 against, 52 abstentions and 9 “No shows” (delegates that, for some reason, are not present when the vote is registered). With the votes against of China and Russia (Permanent Members of UN Security Council) and Syria, appear, from Latin America, Cuba, Bolivia, Nicaragua and Venezuela,. Among the co sponsors, Costa Rica is the only one from Latin America included in the official list circulated by the UN of States co-sponsoring the text.

In this note of Middle East Monitor we read that Qatar and Lichtenstein presented the text. In this other press note of Swiss Info we read that draft document A/71/L.48 is a “ proposal /…/ introduced by Liechtenstein and Qatar and co-sponsored by Switzerland“.

In fact, the initial draft was presented by Liechtenstein (see the text of the initial draft presented by Liechtenstein at the very end of this note) and the draft was co sponsored by the following States: Albania, Andorra, Austria, Bahrain, Belgium, Botswana, Bulgaria, Canada, Costa Rica, Czech Republic, Denmark, Djibouti, Estonia, Finland, Georgia, Germany, Iceland, Ireland, Kuwait, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Maldives, Montenegro, Netherlands, Palau, Poland, Qatar, Saudi Arabia, Slovenia, Somalia, Sweden, Switzerland, Turkey, Ukraine, United Arab Emirates and Yemen. From this list, we can observe that only Costa Rica appears from Latin America as a co-sponsor, Botswana and Djibouti (for Africa), and that none of the 15 States that are sitting at the Security Council (Permanent Members or not Permanent) co-sponsored this text.

It must be noted that last December 9th, the Permanent Representative of Liechtenstein states in his discourse that : “Since the referral of the situation to the International Criminal Court was vetoed in the Council more than two years ago, there has been no serious effort in the Council to ensure accountability and end impunity. It is therefore imperative that the General Assembly steps in and enables the international community to at least take one decisive step forward in this respect: to prepare files that can serve as the basis for criminal proceedings in a court or tribunal that may in the future be able to exercise jurisdiction. My delegation has been working very closely with others in order to produce a text that will propose the creation of such a mechanism. We will consult more widely with the membership in the coming days, with the view to a possible expeditious adoption of a resolution to this end ” (see full text of his intervention).

THE MAIN PURPOSE OF THE RESOLUTION

The resolution adopted states that the General Assembly:

Emphasizes the need to ensure accountability for crimes involving violations of international law, in particular of international humanitarian law and international human rights law, some of which may constitute war crimes or crimes against humanity, committed in the Syrian Arab Republic since March 2011, through appropriate, fair and independent investigations and prosecutions at the domestic or international level, and stresses the need to pursue practical steps towards this goal to ensure justice for all victims and contribute to the prevention of future violations

and that

Decides to establish an “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” under the auspices of the United Nations to collect, consolidate, preserve and analyse evidence of such crimes and prepare files in order to facilitate and expedite fair and independent criminal proceedings in accordance with international standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes

(see full text of the resolution of UN General Assembly in English and in French at the end of this note)

The General Assembly seems to be creative in trying to find mechanisms when accountability and prosecution for war crimes are suspended or blocked by Security Council. The International Criminal Court (ICC) has not been able to initiate any preliminary investigation in Syria due to the veto of Russia. However, since 2011, there is an Independent International Commission of Inquiry on the Syrian Arab Republic established by a resolution of the Human Rights Council (see official website and reports elaborated). This UN General Assembly resolution does not pretend to create an ad hoc international criminal tribunal, like the one created for former Yugoslavia, for Rwanda, for Sierra Leone, and for Cambodia; nor to demand an injunction for a preliminary investigation to be ordered to the Office of the Prosecutor of the International Criminal Court (ICC). It is rather a unprecedented mechanism, created by General Assembly, to try to support the work of the Independent International Commission of Inquiry on the Syrian Arab Republic in obtaining and collecting data and evidence. The mention of “ national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes” indicates that all this evidence collected will be used in the future by judges. Apparently, the message sent is that perpetrators of grave violations of international humanitarian law and human rights in Syria will face justice in the future.

The question remaining is to know if those perpetrators have to be found only in Syrian regular forces and Syrian rebel groups, or if the investigation could also establish responsibilities inside military forces of States supporting with their own aircrafts one of the two sides in Syria. As indicated at the beginning of this month of December 2016, a European Union member like Denmark decided to withdraw from its airstrikes operations in Syria (as well as in Iraq): see on this issue a note published on this very same blog).

After an airstrike mission on Syria involving States members of the so called “Coalition against ISIS“, in October 2016 we read that:

“UN Secretary-General Ban Ki-moon was appalled by the attack, which — if deliberate — may amount to a war crime, his spokesman Stephane Dujarric said. Ban called for an immediate and impartial investigation of all attacks against civilians. “If such horrific acts persist despite global outrage, it is largely because their authors, whether in corridors of power or in insurgent redoubts, do not fear justice. They must be proved wrong,” Dujarric told reporters” (see article of France24 entitled “Syria or Russia to blame for Syria school strike, says France“).

During the discussion between Belgium and Russia concerning civilian deaths due to an airtsrike on Syria´s village of Hassadjek, we read that for Russia, “Si les autorités belges sont vraiment désireuses de tirer au clair les actions de leur force aérienne et d’identifier ceux qui sont responsables du bombardement du village kurde de Hassadjek, elles devraient mener une enquête transparente et impartiale qui implique de demander des données sur la situation aérienne à leurs alliés américains” (see article of Le Vif). Concerning Belgium and available information on its airstrikes in Syria, a report of Airwars of October 2016 on the crisis originated by Russia with Belgium, states that: “Le démenti belge des allégations est compliqué par les mauvais résultats de la Belgique du point de vue transparence : le pays est l’un des moins transparents des 13 membres de la Coalition. Au cours des deux dernières années, la Belgique n’a publié ni les dates, ni les lieux de l’une de ses frappes aériennes en Irak ou en Syrie. Les informations de cette semaine ont seulement été dévoilées dans le contexte de « l’accusation par la Russie », a dit Laurence Mortier“.

In July 2016, an article published in Le Monde stated that:

La coalition a reconnu avoir procédé à 18 frappes dans cette zone le 18 juillet, visant toutes, selon elle, des positions et des véhicules de l’EI. « Nous allons examiner toutes les informations dont nous disposons sur l’incident », ont indiqué les militaires, qui ne se prononcent pas pour l’instant sur d’éventuelles erreurs de tir. « Nous prenons toutes les dispositions pendant nos missions pour éviter ou minimiser les pertes civiles (…) et nous conformer aux principes du droit de la guerre », poursuit le communiqué, envoyé en réponse à un e-mail de l’AFP” (see article entitled “En Syrie, la coalition anti-EI tue plusieurs dizaines de civils Les frappes des avions occidentaux à Toukhar, près de Manbij, ont déclenché un tollé au sein de l’opposition syrienne“).

A picture of the vote can be seen from this twitter account of New Zealand Permanent Mission entitled “NZ cosponsored #UNGA resolution addressing lack of accountability for crimes committed in #Syria since March 2011“. Despite the tittle, New Zealand does not appear as a co-sponsor of this resolution in the official list circulated by the UNGA Secretariat.

THE DEBATE AT UN GENERAL ASSEMBLY

The discussion that took place among delegates in New York last December 21st before and after the vote raises some legal issues. Latin American delegates took the floor in many occasions, supporting or opposing the idea to establish such specific mechanism for Syria. We read in this UN press release that: “The representative of Syria then made a general statement, saying that the resolution violated the United Nations Charter, which stated that the Organization could not intervene in matters within the domestic jurisdiction of States. Legal counsels should have studied that matter, he emphasized, adding that the contents of the resolution had gaps regarding the sovereignty of Member States. Referring to the Charter, he noted that while the Security Council was reviewing a dispute, the Assembly should not make any recommendations with regards to that matter unless the Security Council requested it. In the case of Syria, the Security Council was still seized with its responsibilities, having recently adopted Security Council resolution 2328 (2016). Thus, the actions of Liechtenstein and Qatar, in launching the current initiative, violated the Charter. The establishment of the proposed mechanism was a flagrant interference in the internal affairs of a Member State, undermining the legal jurisdictions of national authorities and organs as well as national reconciliation efforts undertaken by his Government, thus constituting a direct threat to a political solution in Syria. He added that the co-sponsors had also made no reference to terrorism in Syria. That was to be expected since the co-sponsors of that terrorism were among the co-sponsors of the resolution, he said.

Also speaking in explanation of position, the representative of the Russian Federation said that the Assembly did not have the right to establish subsidiary bodies with power that the body did not have. Therefore, the adoption of the draft resolution would exceed the Assembly’s mandate and would constitute direct interference into the internal affairs of Member States. That would also set back the peace process in Syria. Further, the secretive nature of the preparation of the resolution was telling. Therefore, the Russian Federation would vote against the draft.

The representative of Venezuela, condemning the continued escalation of violence in Syria as a result of the war waged by more than 60 terrorist groups seeking to undermine the legitimate Government, said that the war was also destabilizing the region as a whole. The main people responsible for the suffering were now saying they were concerned about the suffering. It was clear that there was a bias in favour of toppling the Government. Noting the disastrous consequences of such actions in Libya and Iraq, he asked why war crimes in Palestine and Libya and Yemen were not investigated as well. The current resolution was biased and politically motivated and Venezuela would vote against it.

The representative of Ecuador said that it was important to bring the perpetrators of war crimes to justice including those which provided financial or military support to terrorists. The draft created an unprecedented mechanism and undermined the sovereign jurisdiction of States while weakening the architecture of international justice created by the Rome Statute. The draft also did not take into consideration the complex nature of the conflict and sought to illegitimately cause regime change in Syria. Further, by requesting that the mechanism be funded by voluntary contributions, the co-sponsors were undermining the impartial nature of the mechanism.

The representative of Cuba said that her delegation could not support a resolution that failed to recognize that the Syrian Government and its judicial system were primarily responsible for investigating any crime committed on that country’s territories.

The representative of South Africa, voicing support for the protection of human rights of all people affected by different international crises, said that when we were dealing with human lives, extensive dialogue and consultations were crucial. One-sided resolutions in the Assembly were not helping to resolve the conflict in Syria.

The representative of Iran said that the international community had a long way to go in addressing terrorism. Syria had suffered and it was incumbent upon the international community to support that country in their difficult fight against extremism. The current draft did exactly the opposite. It was an unconstructive move on both political and legal grounds.

The representative of Algeria said that there should be no double standards in the battle against impunity. His country had contributed actively in the discussions about reforming the United Nations. Condemning all violations of human rights all over the world, he called for accountability “wherever they are”. The Security Council had not submitted any request to the Assembly regarding establishing a Mechanism as called for by the draft. Establishing such a Mechanism in such an expedient manner without broad consultations would lead to failure.

The representative of Syria said that many delegations had raised procedural issues. Article 12 of the United Nations Charter prohibited the Assembly from considering any issue as long as it was seized by the Security Council. What was the legal opinion on this? he asked.

The President of the General Assembly said that Article 12 did not prevent the body from considering items on the agenda of the Council, especially if the items were not identical. The words “is exercising” had been interpreted as “exercising at this moment”.

The representative of Syria recalled Article 12 of the Charter again. The legal advisers in this room had cheated Member States several times with “twisted rulings”, he said.

The President said that if the representative of Syria wished to challenge the President’s ruling, which was based on the legal advice available to him, it was necessary to inform the Assembly about that intention.

The representative of Syria said that it was necessary to open the eyes of Member States about irresponsible activities taking place in the Organization. Legal advisers had to be impartial.

The President said that it was necessary to move on since the representative of Syria had made his point of order.

The Secretary then made a statement about co-sponsors to the resolution.

The Assembly then adopted that resolution by a recorded vote of 105 in favour and 15 against, with 52 abstentions. By the terms of that text, the Assembly decided to establish that Mechanism under the auspices of the United Nations to closely cooperate with the Independent International Commission of Inquiry on the Syrian Arab Republic to collect, 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.

Also in explanation of position, the representative of Argentina recalled that his country had on many occasions supported referring the situation in Syria to the International Criminal Court. Therefore, it had voted in favour of the resolution today in order to ensure the preservation of evidence and enable effective accountability in the future. That was without prejudice to reaffirming that the primary jurisdiction over the events occurring during that conflict and the obligation to investigate them corresponded to Syrian courts. A United Nations accountability mechanism should be funded from the regular Organization budget as a guarantee of impartiality and independence, he stressed, adding that his country would have preferred that reflected in the text.

Explaining his position, the representative of Brazil said his country had voted in favour of the resolution, sharing the concern that evidence of war crimes and crimes against humanity was rapidly vanishing. Preserving such evidence was instrumental to the goal of bringing all perpetrators to justice in accordance with due process. Stressing the legitimacy of the Mechanism, he said it should not be instrumentalized to enable “in absentia” trials based on questionable claims regarding universal jurisdiction.

The representative of Guatemala said his country had voted in favour of the resolution, reaffirming that it was incumbent on the international community to facilitate access to justice. It was important to collect and preserve evidence as soon as possible. However, Guatemala would have preferred the Mechanism to be financed through the regular budget of the Organization to preserve its impartial nature. He called on all parties to fully cooperate with the Mechanism to ensure it could discharge its mandate.

The representative of China appealed for an end to the conflict and the resolution of the issue through dialogue and consultations. It was opposed to any acts in violation of international humanitarian law and human rights. While addressing impunity, precedence should be given to respecting the country’s sovereignty. The Special Envoy had announced that the Geneva peace talks would be resumed in February. The international community should respect Syria’s sovereignty and territorial integrity and avoid complicating the problem.

The representative of Vietnam, while expressing concern about the humanitarian situation, also warned about the establishing of a new mechanism without proper consultation with all parties concerned. The Mechanism also failed to ensure impartiality, she said, stressing that its functions and obligations must be conform to the United Nations Charter, including the principle of respect for sovereignty and non-intervention into States’ internal affairs. Therefore, Vietnam had abstained from voting.

The representative of Indonesia said resolutions already adopted on the issue provided a solid basis for the cessation of hostilities, the granting of humanitarian assistance and the finding of a political solution. His country had abstained from voting today because of questions around the need for establishing a new mechanism with an uncertain mandate in a time of emergency. That had the potential for shifting focus from the needs of the population on the ground. He urged States to consider implementing resolutions already adopted, stressing humanitarian assistance and access for humanitarian workers.

The representative of Egypt stated that accountability for human rights violations was of utmost importance, wherever they were perpetrated, whether in Syria, Libya or Iraq. His delegation had abstained from voting because of the lack of transparency in preparing the draft resolution. It was unacceptable that a small group of States had consulted among themselves about a draft that concerned the international community, acting as if the draft were a “military secret”. Some States cried for accountability when they were the ones implicated in supporting terrorism.

The representative of Kyrgyzstan, voicing support for an expeditious end to the armed conflict in Syria, said that the work must be done on the basis of the United Nations Charter. The adoption of a resolution not supported by the country in question politicized the work of the Assembly.

The representative of Singapore, expressing concern about the humanitarian situation in Syria, said that he had abstained because the terms of reference of the proposed Mechanism were not clear. He questioned as to how the Mechanism would relate to existing international courts and tribunals. International efforts should focus on supporting all involved parties from ceasing hostilities and improving the humanitarian situation.

The representative of Iraq, recalling that his country was suffering from terrorist attacks, stated that the Mechanism should be clear in its purposes and target terrorist groups. The draft resolution did not name certain terrorist groups, and its terms of reference were not established in consultation with the relevant State.

The representative of Mexico called on all parties to the conflict to resume peace talks and achieve a solution through diplomatic means. Since 2014, Mexico had promoted an initiative to restrict the use of the veto in the Security Council in cases of war crimes and crimes against humanity. It was important to give high priority for accountability, she said, adding that her country had voted for the resolution. However, the legitimacy of the new Mechanism was critical for its success, and its source of financing was of great importance for that purpose.

The representative of Thailand said his country had supported the resolution because of the importance it attached to the principles of the Charter and international law. However, in practical terms, many challenges remained regarding how it would proceed, as well as concern regarding the lack of clarity about its relationship with the Commission of Inquiry.

The representative of Paraguay said his country had abstained from voting. Accountability and responsibility for abuses of human rights was critical. However, the Security Council and General Assembly had responded in those terms in recent weeks through resolutions which moved towards alleviating the situation. Thus, once the urgency of the humanitarian aspect had been addressed, other elements of the current resolution had not been discussed with the time that the topic deserved.

The representative of Belize said her country had supported the resolution. It applied to all parties to the conflict as well as civil society and was neither selective nor punitive. It was critical that the Mechanism functioned verifiably and served its purpose to consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights abuses.

Right of Reply

Speaking in exercise of the right of reply, the representative of Qatar said that the representative of Syria was continuing to make false allegations, and taking advantage of the United Nations to launch propaganda against Member States.

The representative of Turkey said that the representative of Syria’s intervention contained many distortions. It was obvious that the resolution adequately addressed the situation in that country.

The representative of Saudi Arabia also rejected the “distorted facts” in the words spoken by the representative of Syria and thanked the countries who had adopted the current resolution. It was “in harmony with the request for accountability” at the Arab League meeting held about Syria.

The representative of Syria said that the Assembly had adopted a resolution that violated the Organization’s Charter and legitimized interference in the internal affairs of his country“.

It must be noted that delegations of France, United Kingdom and United States, usually extremely active when there is a discussion on Syria´s situation, considered prudent not to participate in this debate at the General Assembly this time. The “communiqué de presse” (see full text) of French MFA, dated December 21 th, simply stated that “France welcomes the adoption by the UN General Assembly, on December 21, of a resolution aimed at establishing an international, impartial and independent mechanism to investigate the most serious crimes committed in Syria. This mechanism is complementary to the Independent International Commission of Inquiry chaired by Paulo Sérgio Pinheiro, whose work France also supports. This is an important milestone in the fight against impunity in Syria, which is essential in order to ensure a return to lasting peace“.

CONCLUSIVE REMARKS

This resolution establishes a mechanism that will have to work with many others. At the same time, it sends a message to perpetrators of serious breaches of international humanitarian law and human rights in Syria. However, the lack of agreement between the Permanent Members of UN Security Council on Syrian conflict can explain that some doubts persist with relation to the real objectives of this peculiar initiative. In order to clarify the panorama, Liechtenstein Permanent Mission could explore the possibility to explain to the members of international community its recent interest in accountability and prosecution of perpetrators of grave crimes in Syria.

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Text of Resolution A/71/L.48 adopted by UN General Assembly

The General Assembly

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

The General Assembly,

Guided by the Charter of the United Nations,

Reaffirming its commitment to the sovereignty of the Syrian Arab Republic,

Recalling the relevant resolutions of the General Assembly, the Security Council and the Human Rights Council, in particular Human Rights Council resolution S-17/1 of 23 August 2011, that established the Independent International Commission of Inquiry on the Syrian Arab Republic,

Welcoming the ongoing work carried out by the Independent International Commission of Inquiry on the Syrian Arab Republic, and recalling its reports and the recommendations contained therein,

Expressing its appreciation for the work carried out by the Organization for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism, and recalling its reports and the conclusions contained therein,3

Recognizing the work of Syrian and international civil society actors in documenting violations of international humanitarian law and violations and abuses of human rights law in the Syrian Arab Republic during the conflict, Noting with concern the impunity for serious violations of international humanitarian law and violations and abuses of human rights law committed during the conflict in the Syrian Arab Republic, which has provided a fertile ground for further violations and abuses,

Recalling the statements made by the Secretary-General, the United Nations High Commissioner for Human Rights and the special procedures of the Human Rights Council that crimes against humanity and war crimes are likely to have been committed in the Syrian Arab Republic,

Noting the repeated encouragement by the Secretary-General and the High Commissioner for Human Rights for the Security Council to refer the situation in the Syrian Arab Republic to the International Criminal Court,

1. Emphasizes the need to ensure accountability for crimes involving violations of international law, in particular of international humanitarian law and international human rights law, some of which may constitute war crimes or crimes against humanity, committed in the Syrian Arab Republic since March 2011 through appropriate, fair and independent investigations and prosecutions at the domestic or international level, and stresses the need to pursue practical steps towards this goal to ensure justice for all victims and to contribute to the prevention of future violations;

2. Stresses the need for any political process aimed at resolving the crisis in the Syrian Arab Republic to ensure credible and comprehensive accountability for violations of international humanitarian law and human rights violations and abuses committed in the country in order to bring about reconciliation and sustainable peace;

3. Welcomes the efforts by States to investigate and prosecute crimes within their jurisdiction committed in the Syrian Arab Republic, in accordance with their national legislation and international law, and encourages other States to consider doing the same and to share relevant information to that end with other States; 4. Decides to establish 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 under the auspices of the United Nations to closely cooperate with the Independent International Commission of Inquiry on the Syrian Arab Republic to collect, 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;

5. Requests the Secretary-General, in this regard, to develop, within 20 working days of the adoption of the present resolution, the terms of reference of the International, Impartial and Independent Mechanism, with the support of the Office of the United Nations High Commissioner for Human Rights, and also requests that the Secretary-General undertake, without delay, the steps, measures and arrangements necessary for the speedy establishment and full functioning of the International, Impartial and Independent Mechanism, initially funded by voluntary contributions, in coordination with the Independent International Commission of Inquiry on the Syrian Arab Republic and building on existing capacities, including recruiting or allocating impartial and experienced staff with relevant skills and expertise in accordance with the terms of reference;

6. Calls upon all States, all parties to the conflict as well as civil society to cooperate fully with the International, Impartial and Independent Mechanism and the Independent International Commission of Inquiry on the Syrian Arab Republic to effectively fulfil their respective mandates and, in particular, to provide them with any information and documentation they may possess, as well as any other forms of assistance pertaining to their respective mandates;

7. Requests the United Nations system as a whole to fully cooperate with the International, Impartial and Independent Mechanism and to promptly respond to any request, including access to all information and documentation, and decides that the Mechanism shall closely cooperate with the Independent International Commission of Inquiry on the Syrian Arab Republic in all aspects of its work;

8. Requests the Secretary-General to report on the implementation of the present resolution within 45 days of its adoption, and decides to revisit the question of funding of the International, Impartial and Independent Mechanism as soon as possible.

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French Official Version of UN General Assembly Resolution adopted on December 21 st, 2016

Mécanisme international, impartial et indépendant chargé de faciliter les enquêtes sur les violations les plus graves du droit international commises en République arabe syrienne depuis mars 2011 et d’aider à juger ceux qui en sont responsables

L’Assemblée générale,

Guidée par la Charte des Nations Unies,

Réaffirmant son attachement à la souveraineté de la République arabe syrienne,

Rappelant ses résolutions, celles du Conseil de sécurité et celles du Conseil des droits de l’homme, en particulier la résolution S-17/1 du 23 août 20111 , par laquelle le Conseil des droits de l’homme a créé la Commission d’enquête internationale indépendante sur la République arabe syrienne,

Accueillant avec intérêt les travaux que mène la Commission d’enquête internationale indépendante sur la République arabe syrienne et rappelant les rapports qu’elle a présentés et les recommandations qu’elle y a formulées ,

Accueillant avec satisfaction les travaux que mène le Mécanisme d’enquête conjoint de l’Organisation pour l’interdiction des armes chimiques et de l’Organisation des Nations Unies et rappelant les rapports qu’il a présentés et les conclusions qu’il y a énoncées 3

Saluant le travail que les membres de la société civile internationale et ceux de la société civile syrienne font s’agissant de consigner les faits établissant des violations du droit international humanitaire, des violations du droit des droits de l’homme et des atteintes à ce droit commises en République arabe syrienne durant le conflit,

Notant avec préoccupation que les violations graves du droit international humanitaire, les violations du droit des droits de l’homme et les atteintes à ce droit qui sont commises depuis le début du conflit en République arabe syrienne restent impunies, ce qui favorise la commission d’autres violations et atteintes,

Rappelant les déclarations faites par le Secrétaire général, le HautCommissaire des Nations Unies aux droits de l’homme et les représentants des procédures spéciales du Conseil des droits de l’homme, selon lesquelles des crimes contre l’humanité et des crimes de guerre ont probablement été perpétrés en République arabe syrienne,

Notant que le Secrétaire général et le Haut-Commissaire des Nations Unies aux droits de l’homme ont encouragé plus d’une fois le Conseil de sécurité à saisir la Cour pénale internationale de la situation,

1. Souligne qu’il importe de faire en sorte que les auteurs d’actes criminels emportant violation du droit international, en particulier du droit international humanitaire et du droit international des droits de l’homme, dont certains pourraient constituer des crimes de guerre ou des crimes contre l’humanité, commis en République arabe syrienne depuis mars 2011, répondent de leurs actes, et ce grâce à des enquêtes et à des poursuites adaptées à chaque cas, indépendantes et impartiales, au niveau national ou international, et souligne également qu’il importe de prendre des mesures concrètes à cette fin, de manière à rendre justice à toutes les victimes et à prévenir de futures violations;

2. Souligne que le processus politique qui sera engagé pour régler la crise en République arabe syrienne devra, pour assurer la réconciliation et une paix durable, faire en sorte que les responsables de violations du droit international humanitaire, de violations du droit des droits de l’homme et d’atteintes à ce droit commises dans le pays rendent véritablement comptent de l’ensemble de leurs actes;

3. Se félicite que certains États aient ouvert des enquêtes et lancé des poursuites au sujet de crimes perpétrés en République arabe syrienne qui relèvent de leur compétence, conformément à leur législation nationale et au droit international, et engage les autres États à envisager de faire de même et à échanger des informations utiles à cette fin;

4. Décide de créer, sous les auspices de l’Organisation des Nations Unies, le Mécanisme international, impartial et indépendant chargé de faciliter les enquêtes sur les violations les plus graves du droit international commises en République arabe syrienne depuis mars 2011 et d’aider à juger ceux qui en sont responsables, et de le charger de coopérer étroitement avec la Commission d’enquête internationale indépendante sur la République arabe syrienne pour ce qui est de recueillir, de regrouper, de préserver et d’analyser les éléments de preuve attestant de violations du droit international humanitaire, de violations du droit des droits de l’homme et d’atteintes à ce droit, et de constituer des dossiers en vue de faciliter et de diligenter des procédures pénales équitables, indépendantes et conformes aux normes du droit international devant des cours ou tribunaux nationaux, régionaux ou internationaux, qui ont ou auront compétence pour connaître de ces crimes conformément au droit international;

5. Prie le Secrétaire général, à cet égard, d’élaborer, dans un délai de 20 jours ouvrables à compter de l’adoption de la présente résolution, le mandat du Mécanisme international, impartial et indépendant avec l’appui du HautCommissariat des Nations Unies aux droits de l’homme, et le prie également d’arrêter sans tarder, en concertation avec la Commission d’enquête internationale indépendante sur la République arabe syrienne, les dispositions, mesures et arrangements nécessaires à la mise en place rapide et au fonctionnement effectif du Mécanisme dont les activités seront financées au départ par des contributions volontaires, en faisant fond sur les moyens existants, y compris pour ce qui est du recrutement ou de l’affectation d’un personnel impartial et expérimenté doté d’un savoir-faire et de compétences spécialisées, comme le veut le mandat;

6. Demande à tous les États et à toutes les parties au conflit, ainsi qu’à la société civile, de coopérer pleinement avec le Mécanisme international, impartial et indépendant et la Commission d’enquête internationale indépendante sur la République arabe syrienne afin que ceux-ci puissent s’acquitter efficacement de leur mandat et, en particulier, de leur fournir toutes les informations et les documents dont ils pourraient disposer ainsi que toutes les autres formes d’assistance nécessaires à l’exécution de leur mandat;

7. Prie l’ensemble du système des Nations Unies de coopérer pleinement avec le Mécanisme international, impartial et indépendant et de répondre rapidement à toute demande, y compris toute demande d’accès à toutes les informations et à tous les documents, et décide que le Mécanisme coopérera étroitement à tous les aspects des travaux de la Commission d’enquête internationale indépendante sur la République arabe syrienne;

8. Prie le Secrétaire général de lui faire rapport sur l’application de la présente résolution dans les 45 jours suivant son adoption et décide de revenir sur la question du financement du Mécanisme international, impartial et indépendant dans les meilleurs délais.

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Draft presented by Liechtenstein PP1 Guided by the Charter of the United Nations,

PP2 Reaffirming its commitment to the sovereignty of the Syrian Arab Republic,

PP3 Recalling the relevant resolutions of the General Assembly, the Security Council and the Human Rights Council, in particular Human Rights Council resolution S-17/1 that established the Independent International Commission of Inquiry on the Syrian Arab Republic,

PP4 Welcoming the ongoing work carried out by the Independent International Commission of Inquiry on the Syrian Arab Republic and recalling its reports1 and the recommendations contained therein,

PP5 Expressing its appreciation for the work carried out by the Organization for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism and recalling its reports2 and the conclusions contained therein,

PP6 Recognizing the work of Syrian and international civil society actors in documenting violations of international humanitarian law and violations and abuses of human rights law in the Syrian Arab Republic during the conflict,

PP7 Noting with concern the impunity for serious violations of international humanitarian law and violations and abuses of human rights law committed during the conflict, in the Syrian Arab Republic which has provided a fertile ground for further violations and abuses,

PP8 Recalling the statements made by the Secretary-General, the United Nations High Commissioner for Human Rights and the special procedures of the Human Rights Council that crimes against humanity and war crimes are likely to have been committed in the Syrian Arab Republic,

PP9 Noting the repeated encouragement by the Secretary-General and the High Commissioner for Human Rights for the Security Council to refer the situation in the Syrian Arab Republic to the International Criminal Court,

1. Emphasizes the need to ensure accountability for crimes involving violations of international law, in particular of international humanitarian law and international human rights law, some of which may constitute war crimes or crimes against humanity, committed in the Syrian Arab Republic since March 2011, through appropriate, fair and independent investigations and prosecutions at the domestic or international level, and stresses the need to pursue practical steps towards this goal to ensure justice for all victims and contribute to the prevention of future violations;

2. Stresses the need for any political process aimed at resolving the crisis in the Syrian Arab Republic to ensure credible and comprehensive accountability for the most serious crimes committed in the country to bring about reconciliation and sustainable peace;

3. Welcomes the efforts by States to investigate and prosecute crimes within their jurisdiction committed in the Syrian Arab Republic, in accordance with their national legislation and international law, and encourages other States to consider doing the same and to share relevant information to this end with other States;

4. Decides to establish an “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” under the auspices of the United Nations to collect, consolidate, preserve and analyse evidence of such crimes and prepare files in order to facilitate and expedite fair and independent criminal proceedings in accordance with international standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes;

5. Requests the Secretary-General, in this regard, within 20 working days of the adoption of this resolution, to develop Terms of Reference of the International, Impartial and Independent Mechanism with the support of OHCHR, and requests further that the Secretary-General undertakes without delay the steps, measures and arrangements necessary for the speedy establishment and full functioning of the Impartial and Independent Mechanism, initially funded by voluntary contributions, in coordination with the Independent International Commission of Inquiry on the Syrian Arab Republic and building on existing capacities, including recruiting or allocating impartial and experienced staff with relevant skills and expertise in accordance with the Terms of Reference;

6. Calls upon all States, all parties to the conflict as well as civil society to cooperate fully with the International, Impartial and Independent Mechanism to effectively fulfill its mandate, and in particular to provide it with any information and documentation they may possess pertaining to the above-mentioned crimes as well as any other forms of assistance;

7. Requests the United Nations system as a whole to fully cooperate with the International, Impartial and Independent Mechanism and to promptly respond to any request, including access to all information and documentation, and decides that the Mechanism closely cooperate with the Independent International Commission of Inquiry on the Syrian Arab Republic in all aspects of its work;

8. Requests the Secretary-General to report on the implementation of the present resolution within 45 days of its adoption and decides to revisit the question of funding of the International, Impartial and Independent Mechanism as soon as possible.

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