Prosecuting War Crimes in Syria: Many Tribulations, But No Trials (Yet)

This article was originally published as a contribution to Cicero Magazine. You can find the original article here.

Citizens of Aleppo salvage goods from an aid convoy that had recently been bombed. (Photo: Reuters)

Citizens of Aleppo salvage goods from an aid convoy that had recently been bombed. (Photo: Reuters)

What the United States called Russia’s “barbarism” in Syria, the United Kingdom referred to as Moscow’s “war crimes”. Russia responded by stating that either characterization was “unacceptable”. And so it continues.

Half a decade after the war erupted in Syria, years after a “red line” was drawn in an attempt to prevent indiscriminate violence against civilians, and just a week after yet another failed ceasefire, developments in Syria are just as shocking as they are eerily familiar: hundreds of civilians dead, Aleppo under siege, access to humanitarian aid languishing, and no prospect for accountability for the endless litany of atrocities on offer. But this has not stopped a group of private war crimes investigators from working tirelessly, and mostly thanklessly, to ensure that when the time comes for justice to be meted, the evidence will be ready.

If there is anything approximating a system of international justice, it has consistently failed the people of Syria. As a proponent of international justice and human rights, this is a difficult conclusion to make — but an obvious one nonetheless. To the frustration of many, it is hard to know where to apportion blame for this failure. The International Criminal Court (ICC), set up in 2002 to end global impunity, does not have jurisdiction over Syrian territory. It could investigate citizens of states that are members of the Court — such as the UK, Jordan, Tunisia and Georgia — and who fight for the Islamic State or other rebel forces. But it has said that those it might target aren’t sufficiently senior perpetrators to warrant prosecution. The United Nations Security Council has consistently failed to put in motion any accountability mechanism to deal with the carnage in Syria. Despite its current bravado, the United States initially expressed no interested in referring Syria to the ICC, with then-Secretary of State Hillary Clinton stating that prosecuting the likes of Syrian President Bashar al-Assad would be unhelpful to the cause of peace. When it finally came on board and lent its support to an ICC intervention in Syria, a Security Council resolution that would have referred the situation to the Court was met by a rare double-veto by China and Russia. Against this background, there has been much chatter over an alternative court, perhaps some form of ad hoc or hybrid tribunal, being set up to investigate and prosecute crimes on the ground. Maybe we will see such a tribunal established. But as it stands, talk of an alternative tribunal remains just that: talk.

This sad story does not mean, however, that there is no action being taken to ensure that justice and accountability for the onslaught of humanitarian horrors in Syria can one day be achieved. For the past few years, the Commission for International Justice and Accountability (CIJA) has used a network of on-the-ground investigators to collect evidence of international crimes in Syria. The CIJA, a private NGO staffed and advised by former investigators from major international tribunals, receives funding from states to collect this evidence and store it in Europe. The hope is that someone, someday, can use it to prosecute perpetrators in Syria.

It is worthwhile taking a step back and recognizing how very novel the idea of using a private organization to investigate war crimes is. Indeed, the out-of-the-box thinking that drives CIJA makes some justice advocates, particularly those focused on human rights documentation, uncomfortable. The reality is that those working in Syria to collect evidence are consistently putting their lives at risk for what continues to be an abstract goal which may, or may not, transpire: justice. Moreover, groups like the CIJA must rely on one set of ‘bad guys’ to ensure they have access to collect evidence. This reliance on nefarious actors, a dependency on power shared by ICC investigators, means that the CIJA has tailored its investigations to focus on state-perpetrated crimes, rather than those atrocities committed by the network or opposition and rebel forces. The CIJA doesn’t run away from these inconvenient truths. It understands and acknowledges them as a valid criticisms of its work. It also understands that it represents a necessary evil. In an ideal world, the international community would find a way to support the ICC or some other tribunal in order to effectively investigate and prosecute crimes being committed in Syria. That world simply does not exist.

It is also nearsighted to assume that the ICC is a ‘better’ body to investigate crimes during a civil war. In reality, the Court’s tolerance for risk is so low that it prohibits the institution’s investigators from getting access to precisely the kinds of communities where the worst crimes against humanity occur. For this reason, ICC investigators have never stepped foot in the Sudanese territory Darfur, despite being asked by the Security Council in 2005 to investigate alleged genocide there. Investigators only arrived in Libya after the 2011 uprising and civil war. And in many places, like the Central African Republic, investigators are limited to conducting work in areas protected by the United Nations. Even if Syria was referred to the ICC, it would likely be years before investigators showed up.

Indeed, the work of the CIJA inverses the traditional pathway to accountability. With a few exceptions, international criminal justice has historically been achieved by first creating a tribunal (or granting an existing tribunal expanded jurisdiction) and then investigating the crimes within its mandate. The work of the CIJA, however, means that evidence can be collected before a tribunal is set up. We have the evidence, just no one willing to use it. What this means in practice is unclear. Does this inverted equation heighten or relieve the urgency to set up a tribunal to prosecute perpetrators on the ground?

The other big question is whether the CIJA’s evidence will ever be used. There is a tragic gap between the regularly expressed moral outrage at the suffering in Syria and the interest of states to achieve justice. Not even the declaration by Western states nor the UN’s Commission of Inquiry on Syria finding that the Islamic State has perpetrated genocide against the Yazidi people has galvanized effective investigations or prosecutions. It hasn’t led to the establishment of a tribunal in Western-allied Kurdistan, despite hopes that it might. It also hasn’t translated into Western states themselves, especially those in Europe, using already-collected evidence to open prosecutions against alleged perpetrators of war crimes in Syria living in European communities.

It would be a relief if we could simply blame Russia, China and the Syrian regime for thwarting accountability and for standing in the way of global justice. But justice in Syria continues to be consistently undermined by precisely those states that profess the greatest commitment to it. Much more energy is expended on fueling military engagements, regime change, and counter-terrorism than protecting the rights of civilians. If justice is ever to be achieved, a change in thinking needs to take place, one that frames the belligerents on the ground not as terrorists or radical Islamists to exterminate but as criminals and perpetrators to prosecute. As CIJA Director Bill Wiley exclaims: “Through a scrupulously fair trial, you illustrate that these guys are not soldiers of Mohammad. These are the leaders of a criminal syndicate.” Hopefully the evidence collected by Wiley’s group is used in such a trial. And hopefully sooner than later.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in International Criminal Court (ICC), International Criminal Justice, Iraq, ISIS, Islamic State, Syria, Yazidi Genocide. Bookmark the permalink.

2 Responses to Prosecuting War Crimes in Syria: Many Tribulations, But No Trials (Yet)

  1. First item the ICC would need to make public is who started bombing Syria in 2011. The US and UK began their war on Syria by joining with the terrorists against Assad and the Syrian people. Those opposing Assad were less than 5% of the entire population. At that point the ICC would have no case since the US did not sign nor ratify the ICC under George Bush Jr. He was too busy misleading people, into another war crime, the illegal attack on Iraq. Assad and Qaddafi were opposed to the US invasion of Iraq. We know the fate of Qaddafi and the destruction of Libya by the US, UK and Canada. Canada always gets off easy by hiding under the NATO banner as do other US puppet states.

  2. Pingback: Top ten developments in international law in 2016 | OUPblog

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