What Carla Del Ponte's resignation means for search for justice in Syria

Swiss prosecutor Carla Del Ponte has taken on the Italian and Russian mafias, served as the chief prosecutor in two international tribunals, and spent the last five years fiercely advocating for justice in Syria, scene of some of the worst crimes against humanity the world has witnessed in real time.

But frustration at the paralysis of the United Nations Security Council and the absence of a forum in which to mete out justice, the veteran decided to throw in the towel and resign from a UN panel investigating war crimes in Syria.

Ms. Del Ponte announced her resignation with trademark aplomb Sunday on the sidelines of the Locarno Film Festival.

Pulling no punches, she spoke of her futile attempts over the past five years to persuade the Security Council to either establish an ad hoc tribunal or to refer the case of Syria to the International Criminal Council (ICC) in The Hague.

“There is total impunity,” Del Ponte said, faulting Russia and China for vetoing resolutions seeking to refer Syria to the ICC. Moscow, in particular, has been an unwavering and hands-on ally of the government in Damascus, providing it with military support and diplomatic cover.

Del Ponte, who served as prosecutor for the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, says the ferocity of the violence in Syria is unlike anything she has seen before. But she concluded the commission has “no future” due to the lack of “political will” to see justice in Syria.

If her resignation is seen as a setback for the search for justice in Syria, other international advocates of human rights, while acknowledging her frustration and crediting her service, are not as discouraged that in the long run justice will prevail.

The UN commission's mandate

The UN panel, the Independent International Commission of Inquiry on the Syrian Arab Republic, was established in August 2011, just five months after the start of protests against the government of President Bashar al-Assad. The protesters were met with a violent response from the Arab nation’s feared security forces. Parts of the opposition took up arms, and jihadists rushed in.

The UN commission has a mandate to investigate alleged violations of international human rights law by all parties in the conflict, with a view toward holding perpetrators accountable. Del Ponte, who is credited with proving beyond reasonable doubt that genocide was committed in Srebrenica, in Bosnia, came on board in September 2012.

Initially, the panel focused on the crimes committed by backers of Mr. Assad. Notably, the commission documented the systematic, wide-scale use of torture and the enforced disappearance and death in custody of thousands of detainees held in state-run formal and informal detention centers. The commission has also tackled the crimes of armed and terrorist groups in Syria.

“A democratic opposition no longer exists inside the Syrian conflict,” Del Ponte said in Italian remarks broadcast Tuesday by Euronews.

Her resignation comes at a time when the prospects for justice in Syria appear bleak. Diplomatically, the emphasis is on finding a political solution. Militarily, pro-Assad forces are at a clear advantage, and support for those aiming to overthrow his government greatly diminished. Geographically, the country is increasingly divided.

The possible implication of Russia’s own forces in war crimes makes it even less likely for Moscow to sign off on an ICC referral or the creation of an ad hoc international tribunal for Syria. Del Ponte says she has told Russian officials they could be judged as “accomplices” to war crimes in Syria.

Justice for the powerful

Stephen Rapp, the former US ambassador-at-large for war crimes, says many in the international human rights community share her frustration but not all are equally discouraged. Speaking from Arusha, Tanzania, he points to the conviction earlier this year of Hissene Habre, the former Chad president, on war crimes charges.

The African leader was sentenced – more than a quarter of a century after the crimes were committed – thanks to evidence amassed by a national investigative commission. “Justice, when it comes to atrocities, when it comes to powerful individuals, doesn’t often get delivered until the conflict is over,” notes Mr. Rapp.

A similar body of evidence is being amassed in the context of Syria with the help of Syrian activists and lawyers. The commission has produced more than 20 reports and several thematic papers on the basis of thousands of interviews. It has also compiled a list of possible war criminals that is kept at offices of the UN High Commissioner for Human Rights in Geneva.

Paulo Pinheiro, chairman of the commission, says via email that he and his fellow commissioner, Karen Koning AbuZayd, would continue to work “for the right to truth of the victims and accountability for perpetrators of the violations and crimes committed in the war in Syria.”

Mr. Pinheiro stresses that the commission has never taken sides in the conflict and has the unique advantage of having access to all parties involved in it, with the exception of the Islamic State militant group and Al Qaeda. One of the main obstacles to the panel’s work has been lack of access to Syria.

“We are the only commission of inquiry working on an ongoing conflict,” he says.

The body of work of the Syrian commissions to date, says Rapp, helps lay out the contextual patterns of the crimes and can be very relevant to criminal prosecutions, starting with ongoing efforts in European domestic courts and eventually an international or specialized tribunal.

The smallest victims

Del Ponte has used remarks on her resignation to highlight the plight of the smallest victims of the conflict in Syria, noting children are maimed and killed as a result of the fighting or die fleeing the violence. In Locarno, she recalled the stare of a two-year-old Syrian boy who survived a bombing attack and was brought for treatment in Amman, Jordan.

The Syrian doctor tending to the child in an overcrowded clinic room was proud of saving his life, but at a loss as to where to put him since his entire family was killed in the bombing attack. Del Ponte endeavored to find a home for this boy in her native Ticino, and did so months later, but she was unable to find the child back in Amman.

“It really upset me because I still remember that gaze now,” she shared.

In a bid to overcome the deadlock in the Security Council, the UN General Assembly in December voted in favor of establishing an independent, international mechanism to ensure accountability for war crimes and crimes against humanity committed in Syria.

Rapp, the former ambassador- at-large, sees the 105 nations who voted in favor of the mechanism, compared with 15 against, as a clear sign of the international community’s “political will” to see justice for the crimes committed in Syria.

The new mechanism has a mandate to collect, consolidate, preserve, and analyze evidence of violations, which can then be shared with a court.

“We need to continue,” he stressed. “The atrocities have not ended.”