CYIL vol. 7 (2016)

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CYIL 7 ȍ2016Ȏ

THE UNITED NATIONS WAR CRIMES COMMISSION…

undeserved, since the Commission could execute only the powers that were conferred

upon her by its member States. In fact, the Commission – in order to achieve the

accountability – was ready to do more than requested and even start to deal with crimes

against humanity committed by the Nazis against their own people. Regarding the

second point, I have to admit that States may establish international organizations for

their political reasons. Nevertheless, I would argue that for the exile Governments,

that pushed for the creation of the Commission, the primary goal was to achieve

a just retribution for the horrible crimes perpetrated during the Second World War.

In view of the above, I see the Commission as a success story and a model that

could and should be followed in situations where the crimes under international law

are committed and the International Criminal Court has no jurisdiction over them.

In such situations, it is desirable to document these crimes and collect evidence that

could be later used by this Court (if jurisdiction is granted by the Security Council

or by the State-concerned), by an

ad hoc

tribunal or possibly by the domestic courts.

Currently, a commission of this kind would be needed for the situation in Syria.

Although the Human Rights Council established the Independent International

Commission of Inquiry on the Syrian Arab Republic “to investigate all alleged

violations of international human rights law” in 2011,

this commission has two

major flaws: first, its mandate is too narrow, as it does not cover the violations of

international humanitarian law (the Human Right Council has no competence in

this area) and, second, its members – being independent experts – cannot rely on the

support of States when collecting the evidence.

In addition, there are also commendable initiatives of the NGOs in this field,

such as The Syria Justice and Accountability Centre.

These bodies, however, lack the

authority, legitimacy and independence of the UN organs, so it is hard to anticipate

what value (if any) the evidence collected by the NGOs will have before any court. As

such, an option of a commission on crimes under international law established either

by the UN Security Council or General Assembly should be seriously considered.

The Human Rights Council Resolution S-17/1, Situation of human rights in the Syrian Arab Republic,

22 August 2011, operative paragraph 13: “Decides to dispatch urgently an independent international

commission of inquiry, to be appointed by the President of the Human Rights Council, to investigate all

alleged violations of international human rights law since March 2011 in the Syrian Arab Republic, to

establish the facts and circumstances that may amount to such violations and of the crimes perpetrated

and, where possible, to identify those responsible with a view to ensuring that perpetrators of violations,

including those that may constitute crimes against humanity, are held accountable;”