Imagining Justice for Syria
The situation in Syria poses an acute—some might say existential—challenge to the international community’s commitment to justice and accountability. The conflict has been so destructive, the crime base so massive, the pool of potential defendants so voluminous, and the political impediments so impenetrable that an entrenched impunity has set in. The crisis marks the abject failure of the international system of peace and security erected in the post-World War II period. The Security Council has been almost entirely incapacitated by the propensity of Russia to wield its veto against nearly every coercive measure of any consequence, at times with China in tow. As a result, other actors, within and without of the United Nations, have endeavored to find inventive ways around this geopolitical impasse. This post—which draws from my forthcoming book in the Lieber Studies Series—offers a brief overview of the innovative institutions, legal arguments, and investigative techniques that have emerged in an effort to advance justice and accountability for Syria—bright spots on an otherwise bleak accountability landscape.
The Syrian conflict has generated an unprecedented investment in documentation efforts, making this conflict the most well-documented international crime base in human history. Documentation is not necessarily an accountability mechanism in its own right. However, almost any transitional justice response will benefit from, or be dependent on, the accurate and comprehensive documentation of crime-base and linkage information. Multilateral documentation efforts in Syria include a Commission of Inquiry convened by the U.N. Human Rights Council; several fact-finding missions and investigative bodies tracking the use of chemical weapons and apportioning responsibility under the expanded auspices of the Organisation for the Prohibition of Chemical Weapons (OPCW); and the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (IIIM), a multilateral investigative body created by the General Assembly.
In the non-governmental realm, multiple organizations—Syrian and international—have augmented the massive cache of potential evidence. With the explosion of social media and the ubiquity of smart phones capable of capturing the commission of international crimes in real time, citizen journalists have uploaded millions of digital images and thousands of hours of footage. This, in turn, has created both opportunities and challenges to accountability, particularly given the surfeit of unverified (and in some cases unverifiable) data. New technological tools—including AI-enabled machine vision—have been developed and deployed to capture, authenticate, and deduplicate the millions of digital images now available on the internet to enhance international crimes investigations in the modern information environment. Most intriguing is the possibility that some of this digital information might operate as a substitute for (or supplement to) witness testimony—the soft underbelly of the international justice system.
The Syrian Archive, for example, is collecting, verifying, and analyzing user-generated data from an array of certified sources for use in legal proceedings. A new civil society documentation model has emerged in the form of the Commission for International Justice and Accountability (CIJA). CIJA is a privatized investigative team funded by national governments that is collecting potential evidence in situ, preparing proto-indictments of perpetrators, and producing sharply analytical briefs to inform justice processes. Many of these multilateral and non-governmental organizations are carrying out normally statist functions, revealing that sovereign States no longer enjoy a monopoly on criminal law processes. These developments evince a striking willingness on the part of States to outsource aspects of their prosecutorial process and work in partnership with non-governmental and multilateral institutions in the quest for justice.
The assumption has been that all this information would lay the groundwork for a whole range of transitional justice mechanisms—in the event that there is ever a transition in Syria—including criminal trials against those deemed responsible for the carnage. So far, however, documentation has emerged as a substitute for justice. And, it is unclear whether, when, or where the information gathered will be systematically transformed into hard evidence in a court of law.
Accountability Venues and Models
The International Criminal Court (ICC)
There are plenty of justice options; most obvious is the International Criminal Court. An impenetrable Russian veto, however, has prevented a referral of the situation in Syria to the ICC. Nonetheless, there are novel theories for how the ICC could proceed against some actors within the conflict even if it cannot exercise the full reach of its jurisdiction in Syria. These approaches include animating the ICC’s nationality jurisdiction over foreign fighters who hail from ICC member States; focusing on continuing crimes that involve the imposition of transboundary human suffering on the territories of ICC States; and convincing the Council to refer the Islamic State of Iraq and the Levant (ISIL) “situation” to the Court, even though ISIL no longer controls territory or enjoys any attributes of statehood. So far, however, the Prosecutor has declined to move forward. She has indicated (at least for now) that “the jurisdictional basis for opening a preliminary examination into [alleged ISIL crimes] is too narrow at this stage.”
That said, it is not clear that the ICC is best positioned to administer justice for Syria. Concerns include the sheer magnitude of the criminality on display and limitations in the Court’s subject matter jurisdiction over war crimes committed in non-international armed conflicts. In addition, the shortcomings of prior Security Council referrals are legion. Furthermore, the limitations of the ICC are becoming increasingly apparent as cases fall apart, State cooperation is withheld, and resources become even more thinly spread.
Other International Tribunals
The ICC was supposed to obviate the need to produce new justice mechanisms. However, given the scale and nature of the harm in Syria, a dedicated ad hoc tribunal with subject matter jurisdiction over the entire catalogue of war crimes committed in non-international armed conflicts (in addition to crimes against humanity and genocide) in many respects offers a better alternative.
New theories for how to accomplish this, drawn from the Nuremberg precedent and more recent past practice, have emerged. These theories depend neither on a consensus within the Security Council nor on President Bashar al-Assad’s consent. The most intriguing is the potential for a subset of States to pool their respective jurisdictional competencies to create an ad hoc institution. Another option would be to create an international institution exercising jurisdiction over crimes that are unmistakably subject to international/universal jurisdiction. The General Assembly could also take additional action to build out the IIIM into something more akin to a prosecutor’s office or even a full-scale tribunal operating on the basis of voluntary cooperation. A regional tribunal within the League of Arab States would also be a possibility, modeled on the proposed criminal chamber of the African Court of Justice & Human Rights. Before Assad re-asserted control over the majority of opposition areas, one proposal suggested holding trials before specialized chambers in liberated areas in Syria or within neighboring States with varying degrees of international involvement. Any of these models could be hybridized with Syrian jurists and law (subject to the constraints of human rights obligations).
Despite this plethora of ideas, however, a concrete proposal for a tribunal dedicated to Syria has yet to emerge. These available models have failed to garner the necessary diplomatic support, in part because the international community has been reluctant to complicate hoped-for peace negotiations (which—as it turned out—never materialized) and in part because States have been palpably wary of creating the precedent of a tribunal outside of the Security Council or without Syrian consent.
As compared to the lack of action on the multilateral plane, domestic courts are, to a certain extent, filling the accountability gap. They are doing so by invoking the entire array of domestic jurisdictional principles—not always to their full reach, but more than they ever have before. Indeed, the conflict in Syria has helped to re-enliven the principle of universal jurisdiction, which had been in retreat in recent years following a concerted backlash launched by powerful States.
When it comes to events in Syria, a number of domestic trials involving events and actors in Syria are underway in courts around Europe, featuring a range of criminal charges and fact patterns. These cases fall into two general buckets. One set of cases involves charges under anti-terrorism legislation or laws criminalizing participation in foreign wars—effectively crimes against the sovereign. These defendants are generally members of ISIL and former foreign fighters who have returned to the comforts of Europe. States are highly motivated to prosecute such cases because they perceive these defendants as posing an acute national security threat, both from the perspective of bringing the violence home but also as potential recruiters and radicalizers.
A second subset of cases involves individuals who stand accused of committing international crimes stricto sensu. These latter prosecutions are enabled by the incorporation of international criminal law precepts—and particularly the prohibitions against war crimes—into domestic penal codes, a global legislative trend occasioned in large part by the ratification of the ICC Statute (even though that treaty technically does not require domestic incorporation of ICC crimes). For example, in what may be the first trial to involve harm to the Yazidi people, Taha A.-J. and his German wife Jennifer W. are on trial in Germany for murder, human trafficking, war crimes, crimes against humanity, and genocide. These charges are in connection with their purchase and mistreatment of a Yazidi woman and her five-year-old daughter—tragically, the child died of thirst while in their custody in Iraq.
Somewhat troubling is the fact that the vast majority of cases that have moved forward have targeted suspects connected to opposition groups—including ISIL members—rather than Syrian regime personnel, who have not had occasion to flee Syria. One important exception is another German case involving two senior figures from the Syrian General Intelligence Service who have been indicted for crimes against humanity: Anwar R. and Eyad A. Anwar R. stands accused of killing and mistreating individuals in Syrian custody during interrogations. Eyad A. allegedly manned a checkpoint where he endeavored to identify deserters, protesters, and members of the opposition and transfer them to the prison where Anwar R. operated. A third suspect, Abdulhamid A., was simultaneously captured in France. The arrests were the result of a joint investigation team formed between Germany and France.
All told, while important, these domestic proceedings remain episodic and opportunistic. Given the investigatory and prosecutorial realities, the cases in the aggregate are not representative of the full scope of the international crimes being committed in Syria. If the goal is comprehensive accountability, these results are disappointing, particularly to the victims of regime crimes. Nonetheless, these cases establish important legal precedents; provide domestic authorities with valuable experience prosecuting international crimes; offer a measure of justice to victims; deny perpetrators safe haven; punish individuals accused of horrific acts; and promote stability by preventing victims and victim groups from taking justice into their own hands in their places of refuge.
Furthermore, these cases reveal that national authorities are gradually developing a track record of coordinating amongst themselves and invoking domesticated international criminal and humanitarian law to address the presence of perpetrators within their jurisdictional reach rather than relying solely on immigration remedies. As domestic courts grapple with these rules, they are generating State practice and opinio juris—the two ingredients of customary international law. Even singular cases can be highly salient and can exert a multiplier effect. As such, they can signal that justice is possible and help advocates overcome political resistance elsewhere. Given the obstacles to exercising international jurisdiction, these results should be celebrated. Domestic courts have emerged as the only potential forum to administer justice to date for Syria—one case at a time.
Rounding out the options of accountability, there have been some developments around civil redress. Some tort law options exist in domestic courts, especially in the United States with its suite of statutes giving its domestic courts jurisdiction over international law violations. Although civil remedies are not as robust as those available in criminal proceedings, civil liability offers victims certain benefits. These include the opportunity to control the litigation process and act where the public authorities may be unable or unwilling to do so. By way of example, human rights lawyers brought a groundbreaking suit against Syria under the United States’ Foreign Sovereign Immunities Act (FSIA). The suit resulted in a $300 million judgment for the surviving family members of Marie Colvin, the intrepid war correspondent assassinated by the Syrian regime. The asymmetry of this result is striking, however: while the heirs of a U.S. victim are able to take steps to recover, millions of Syrians are suffering with no meaningful access to justice.
In sum, the Syria situation exemplifies two countervailing trends: the development of robust investigative methods within the international community alongside the dearth of international judicial institutions to receive the information unearthed, sometimes literally. If Syrian victims are to enjoy any measure of accountability, the international community needs to better align these trajectories in the direction of justice.
That said, there are lessons to be learned for future conflicts and some developments that inspire hope. First, it is clear that we have plenty of positive international law when it comes to imposing criminal accountability for the commission of atrocity crimes, including the elements of crimes, prosecutable forms of responsibility, and universal due process standards. To be sure, a number of crimes being committed in the war in Syria have not been fully flushed out in jurisprudence, including the use of chemical weapons and starvation as a weapon of war. But, in general, the international jus puniendi has evolved into a mature corpus of international law. What is still lacking is the ability to achieve a political consensus to activate this law with respect to situations like Syria, where there has been no regime change, where atrocities are ongoing, and—most importantly—where the great powers find themselves at odds with each other. This longstanding weakness in our system of international justice is made all the more pronounced by the situation in Syria.
Second, the unprecedented investment in documentation and in technological innovations—including electronic archives, media verification and deduplication techniques, and standardized collection protocols—will help ensure that actionable evidence exists if, and when, a court with jurisdiction emerges. The survivors of other human rights crises stand to benefit from these new investigative solutions.
Third, it cannot be denied that the failures of the Security Council when it comes to Syria have eroded our faith in the U.N. system of collective security. Because the Council remains mired in politics, with Russia readily wielding its veto in defense of Assad, it has been unable to deploy its strongest accountability tools: the creation of an ad hoc tribunal, the referral of the situation to the ICC, or the imposition of targeted sanctions on responsible individuals. While these blockages are regrettable, they have engendered some salutary developments. In the face of dysfunction in the Council chamber, States have turned to other multilateral fora—including some not normally associated with international criminal justice. Moreover, they have been able to overcome collective action challenges in the General Assembly to make progress towards accountability. All of these developments are playing out in venues not governed by the veto. With the opening of each new situs of activity, the Security Council becomes increasingly marginalized, suggesting a shift in the balance of powers among the U.N. organs and on the international stage.
Fourth, the paralysis in the Council has created space for intrepid justice entrepreneurs, policymakers, diplomats, and investigators to innovate and experiment with principles of institutional design that are extending the state-of-the-art in important ways. These developments signal the diversification of actors, a new institutional heterogeneity, and a burgeoning creativity around the imperative of justice. Indeed, a number of new legal theories and tribunal blueprints are now available for future atrocity situations if the political will to move forward—regionally or internationally—ever materializes.
Finally, the war in Syria has re-enlivened the principle of universal jurisdiction, rendering domestic courts the situs of the most aggressive and creative accountability exercises to date. A number of juridical innovations have facilitated this trend towards the empowerment of domestic courts, including the incorporation of international criminal law and expansive jurisdictional principles into national penal codes, the establishment of specialized—and globally networked—war crimes units, and the creation of increasingly frictionless systems of mutual legal assistance. The enforcement of international criminal law is now more decentralized, but also more coordinated, than ever.
Although the international community missed the opportunity up front to fully integrate a justice component into its response to the Syrian conflict, it now has a chance to use the reconstruction process to create a path to accountability. It can condition aid and potential sanctions relief on Syria’s cooperation with future transitional justice and accountability efforts and with those already underway, including domestic prosecutions in Europe. As the international community begins to absorb the inevitability of Assad remaining in power, it remains to be seen whether justice will be a priority at the back end of this horrific conflict.
Beth Van Schaack is the Leah Kaplan Visiting Professor in Human Rights at the Law School and a Visiting Scholar at the Center for International Security & Cooperation at Stanford University.