The door kept opening. In would come young men, sometimes hobbling a bit. They’d speak to the man behind the desk in Arabic and step back out. I was sitting in a sweaty, brightly painted room in southern Turkey. The man behind the desk was a hospital administrator who was shifting uncomfortably in his seat. The men coming in and out were either employees of the hospital or injured patients from Syria. We were in the middle of a conversation that was difficult enough without all the stops and starts, but here we were.
We were discussing the rape and torture of a 14-year-old Syrian girl. I had a feeling she was in the building, somewhere upstairs, but the administrator, whose eyes darted nervously back and forth, wouldn’t say.
Eight shabiha (plainclothes militia) members had held the girl in the basement of a private house in the northern city of Idlib for seven or eight days in retribution for an alleged family connection to the Free Syrian Army, according to the administrator. Signs of sexual assault on her were “very clear,” he said, and she had lesions on her vagina. He said men had ejaculated on her and that she’d been raped; she had cigarette burns on her body and black eyes when she arrived at the hospital. The men, the girl had told her doctors, had used hot metal rods to burn her arms, legs and thighs. She also said she was forced to witness the execution of two people.
But I wasn’t going to meet her, not that day or any other. “She gets very agitated every time she tells her story,” the administrator said. Another source told me she has “fallen apart completely.”
I didn’t need to meet her; asking her to go through her experience one more time would only compound her trauma, and the details had already been recorded by the UN’s Commission of Inquiry on Syria. This is a case that has many solid sources—hospital records, firsthand interviews, corroborations from doctors and family friends. It’s one of the strongest cases on record of sexualized violence in Syria, according to investigators.
In my two years of documenting this phenomenon on a live map for Women Under Siege at the Women’s Media Center, I have reported dozens of stories at the Syrian border personally. I have also aggregated hundreds of stories that involve potentially thousands of women, men and children from sources like the UN, international and local NGOs, and media outlets. Together, we currently have 236 individual reports of varying kinds of attacks on the map, with sources clearly marked and alleged perpetrators—the majority of which are government or government-aligned forces—named. The strength of these cases varies; much of the information is second- or third-hand. But some of it is as solid as the story of the 14-year-old girl, with multiple strong sources, medical evidence or survivor testimony.
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After so much documentation and speculation, the question becomes, Is this case—or any other of sexualized violence in Syria—strong enough to prosecute? Even if it is, where and how will that prosecution take place? Who will be prosecuted, and how high will the investigation go? Will it go beyond the immediate perpetrators to include anyone who masterminded or enabled these crimes? And what will that mean for survivors?
After working this long to piece together a picture of what is happening to Syria’s civilians, I wanted to figure out what all this documentation will mean once justice for survivors begins to take precedence over ending the actual fighting. The war may still be raging, but at some point it will end. At that point, the survivors will have to start picking up the traumatized pieces of their lives. And as in recent wars, such as in the former Yugoslavia, Rwanda and Sierra Leone, justice will aid in the healing of individuals and a country.
The Difficulty of Investigating
With so many alleged sexualized crimes on both sides, where do you start?
“It’s like in 1942: Where do you start investigating the Holocaust?” said Patricia Viseur Sellers, the former legal adviser for gender at the tribunals for the former Yugoslavia and Rwanda. “You start where you can.”
Sellers, who spoke to me in a personal capacity and not in her official role as a special adviser to the International Criminal Court (ICC), said that even though the war isn’t over, now is the time to investigate: “Investigate now, investigate later,” she urged.
There are many ways to obtain evidence for criminal proceedings. These include analyzing aerial and satellite imagery; phone/e-mail intercepts; getting information from defectors; taking proper medical evidence; documentation by the parties themselves of their own crimes. All of these things are actually under way at the moment, even that last one: In January a Syrian-government defector, code-named “Caesar,” released a cache of some 55,000 photos of corpses bearing unmistakable signs of torture and starvation, which were reviewed and published by a duo of former international prosecutors and a pathologist who interviewed the defector and backed up his assertions.
Is there a paper trail somewhere that points to the detention and torture of the 14-year-old girl? Will it be connected to possible orders from above to punish the girl’s family? Such hard evidence was a boon to investigators in Bosnia. “We had an advantage in that the Bosnian Serb Army were an extremely organized military. They kept written/typed orders, teletypes, vehicle logs, duty officer notebooks, operational maps and intercepts,” said Erin Gallagher, a former investigator for the International Criminal Tribunal for the Former Yugoslavia (ICTY), who has also investigated sexualized violence in Syria for the UN. Gallagher is currently director of emergency investigations and response at Physicians for Human Rights.
“It’s all pieces of a puzzle,” she said. “There’s no one piece that answers it all, but, put together, it all helps to support the hypothesis of what happened.”
In addition to obtaining the evidence, said Sellers, another challenge in investigating war crimes such as those in Syria is ensuring that investigators are “gender competent.” Are they able to effectively ask witnesses the right questions about sexualized violence? Can they gather the right physical evidence, testimonials and direct and circumstantial evidence? The physical-evidence issue is particularly problematic with rape: There is often no physical evidence of soft tissue damage that could prove rape in a courtroom setting, although there might be other wounds, such as cigarette marks, scars from ligatures, wood splinters, abrasions or genital mutilation. This increases the importance of testimony from the victim or other witnesses—such as an eyewitness or doctor.
According to Sellers, it’s crucial that investigators understand the complex context of what they’re seeing and hearing. The stigma surrounding sexualized violence in the Syrian conflict has coupled with cultural and religious traditions to create a perfect storm of fury against victims, with widespread reports of rape victims being killed or divorced. They don’t have much reason to be speaking out.
Of course, it’s difficult to gather all this documentation in the middle of a war, especially one as chaotic as Syria’s. Much of the testimony comes piecemeal, as survivors trickle out of the war zone and into refugee areas, where they are living in tents or the crumbling ruins of buildings. Often once they’ve spoken to an investigator or reporter they move on, more concerned with making a life for themselves and their families than sticking around for the slim chance of a prosecution.
Despite these difficulties, Sellers argues that it’s important to make a concerted effort to create an organized approach at the investigative stage. Part of figuring out how to prosecute means looking at not only the strong cases, like that of the 14-year-old girl, but at those that are going to stand up well as a symbol for others. (Good cases are usually part of the pattern of harms, she says. They are therefore also representative and become symbolic.) “There should be much more emphasis on how the investigations are pursued and how they’re even strategized and managed: what are the facts and how do these facts relate,” she said.
Over the past year I have discussed these issues with numerous legal experts. What is the best way to investigate sexualized violence in Syria? Should the focus be on crimes by government forces rather than opposition forces, since the overwhelming majority of evidence points to the former? Should investigators start with reports at a particular military branch? Should they look at, say, all reports of rape by shabiha in a certain part of the country and figure out their M.O.? Should they examine who is targeted, to see if there is a common victim profile? Or follow the movements of individual officers named by multiple witnesses? Or perhaps go straight to the top—as high as you can, until you reach Bashar al-Assad?
“The ideal is to do the perpetrators at all levels,” Sellers said. “If it goes that far up the ladder, you don’t stop climbing, but you don’t stop descending either.”
Quite apart from the difficulty of arresting Assad, to put him on trial for rape, investigators would have to prove he had full “command responsibility.” They would have to prove he had knowledge of what was going on and that he had control over the military, and demonstrate the ways he has had control over them—the decisions he’s made and how they are passed down and put into effect. He has to be directly connected.
There is already a large body of evidence that rape is happening and that the Syrian government is aware of it and letting it continue. It remains to be seen whether evidence will turn up that shows the high command and the top political leadership ordered that sexualized violence be used as a weapon of war. Right now, the best plan is to keep gathering as many stories and as much forensic evidence as possible in the hope that governments, the ICC or a special tribunal will do something with it. As Desmond de Silva, the former chief prosecutor of the Special Court for Sierra Leone, who co-authored a report on the Caesar photographs, told CNN in January, “All we can do is put the ammunition in the pistol. It is for others to aim it and pull the trigger.”
What Kind of Trials?
This month the United States decided to support a push by France for an ICC investigation into alleged Syrian war crimes. Over the past three years, there have been multiple calls by various groups, including recently by the Syrian opposition, for an ICC investigation. But since Syria is not a party to the court, it must get a referral from the UN Security Council to investigate war crimes there. And that’s highly unlikely, given the fact that Russia, a permanent member with veto power, is closely allied with the Assad regime. Along with China, it has already used its veto three times to stop resolutions that have threatened sanctions against Syria.
There is also the possibility of an ad hoc tribunal, along the lines of the ICTY or the International Criminal Tribunal for Rwanda (ICTR). Such a tribunal would have the authority to request information gathered by opposition groups or foreign governments. But an ad hoc tribunal is also unlikely, since it too would require a Security Council referral. (Open Society Foundations president Aryeh Neier suggested in 2012 that an “Arab League tribunal” for Syria be formed.)
Sellers calls the possibility of an ad hoc Syria tribunal “the $1,000 question,” observing that “even if it did get to a Security Council referral, there is an issue of inadmissibility of the Syrian government saying, ‘Look, we can handle this here.’ ”
In fact, some Syrians are already pushing for a national court to try war crimes. The Associated Press reported in September that Sharif Shehadeh, a Syrian legislator and political analyst, said he thinks Syria’s legal system “is equipped to prosecute anyone—civilians or soldiers—who commit such crimes.” But that possibility, however unlikely it now seems, raises another nasty set of questions, beyond the rather glaring one of the need for a government not seriously implicated in the crimes: How will a country recently ripped apart by civil war handle sensitive issues like witness protection, evidence and due process, assuming its courts are up and running? Are there professional staffers who know how to conduct proper trials, and how is it possible to keep them from becoming too politicized in such a fractured country? Will the court be looking at crimes committed by all sides, as well as at those that are representative, grave and notorious?
Regardless of whether there is an international tribunal or one in Syria, there will be hurdles right from the start. In Cambodia, much of the professional judiciary, lawyers as well as judges, were slaughtered during the Khmer Rouge’s years in power, Sellers said. As the war in Syria has progressed, many of the country’s prominent lawyers and judges have been killed or have fled the country, said Mohammad Al Abdallah, executive director of the independent Syria Justice and Accountability Centre. While he said he cannot give a count, “lots” of lawyers have been targeted, “especially the human rights defenders and those who worked in human rights before the uprising.” At this point, Al Abdallah added, dozens of judges are being targeted as well, but now the perpetrators are not only the government but also extremist groups like the Nusra Front, which are trying to set up so-called Sharia courts. The first thing these groups do, he said, “is to empty the scene of any real judges.” These attempts by groups and individuals to set up their own justice mechanisms, he said, are annihilating any sense of a cohesive system that can effectively try crimes after the war ends.
“I don’t believe the justice sector in Syria can accomplish this mission, as it lacks all the needed expertise, knowledge and respect of international standards,” he said. Of the options left, Al Abdallah leans toward the ICC rather than what he calls a “highly politicized” special tribunal.
There is also the question of the ways in which a peace process could affect war crimes prosecutions: As with South Africa, a settlement could involve selective amnesty or a truth and reconciliation commission that could affect the latitude of war crimes prosecutions. Not only that, but, as former ICC prosecutor Richard Goldstone recently warned, “the investigation of war crimes may inhibit peace negotiations.”
Despite all the difficulties involved in establishing a tribunal, publicly taking official steps now that indicate some kind of justice is on the horizon may have a deterrent effect. We’re coming for you, it would say. You better stop what you’re doing.
A Hierarchy of Justice
At this point, we don’t know where sexualized violence falls in the terrible hierarchy of damage from this conflict—whether it will stand on its own, or whether it will be considered inseparable from the overall violence. But Sellers said not looking closely at it is like “not showing the houses that have been burned.” Investigations, she argued, need to be carried out with a “gender lens,” even as we examine all attacks against the civilian population.
“It doesn’t have to be systematized,” Sellers said, for these acts to amount to war crimes or crimes against humanity. Terrorization of a civilian population is a war crime. If rapes are classified as a crime against humanity, it doesn’t even matter if there is a conflict or not (although officially in Syria there is, according to the International Committee of the Red Cross).
Crimes against humanity, according to the ICC, “include any of the following acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” which goes on to list numerous crimes such as rape and enslavement.
And a UN Commission of Inquiry report in March 2013 laid out exactly how certain cases of sexualized violence in Syria could be classified as war crimes or crimes against humanity:
In several egregious incidents, Government soldiers and Shabbiha elements allegedly entered homes and raped women and girls in front of male family members; they sometimes killed the victims afterwards and forced men at gunpoint to rape their wives and daughters. The Commission concluded that there are reasonable grounds to believe that such acts of sexual violence, perpetrated in connection to the armed conflict, could amount to war crimes. The commission also found that the rapes that occurred during the military operations in Homs in February and March 2012 and in Al-Haffe in June 2012, as part of a widespread or systematic attack against a civilian population, could be prosecuted as crimes against humanity.
Experts I spoke to said there’s already enough evidence to mount prosecutions. But, some may ask, Why prosecute what may turn out to be a few thousand cases of sexualized violence when at least 150,000 have been killed and tortured? Because numbers don’t matter. As someone who tracks rape through numbers on a map, I came to this conclusion very early. The goal is getting it all out there, and the little red dots add up in a way that is deeply disturbing. But whether it is going to turn out to have been 10,000 women, 1,000 women or just one woman hideously raped, justice must be brought.
A number of people have tried to minimize what’s happening to Syrian women (and men too, who constitute 20 percent of the reports of sexualized violence on our crowd map—the majority of whom have been violated in detention by government forces). There’s not “much” rape, I’ve heard, from those who seem to somehow just “know.”
“It’s interesting how comfortable they are in their assumptions,” Sellers said, who offers a reason why some people make light of the issue: “Minimizing it or making it seem to be a politically correct, feminist issue allows us not to get to the harm that is so deep.”
It’s too painful for many people, clearly. Yet not to acknowledge that sexualized violence is a quintessential part of this conflict “is not to be able to address the complexity of the war and, therefore, move forward,” she said. And a country torn to pieces like Syria cannot move forward without some measure of truth brought to light and reconciliation and reparations considered.
We owe that to least one person, if not millions. In southern Turkey, there is a 14-year-old girl sitting in a room, terrified every second of her life. She will forever live with burn marks on her body, and potentially on her psyche. But she need not live forever without justice.