International Justice has done little for Syria, but Syria has done a lot for International Justice

A Kurdish fighter looks over the destroyed Syrian town of Kobane on January 30, 2015. (Photo: AFP / Bulent Kilic)

Eight years after the onset of the civil war, international justice has done little for Syria, but Syria has done a lot for international justice. Strategic accountability efforts are yielding important results. Sweden, France, and especially Germany are at the forefrontof investigating and prosecuting Syrian perpetrators of international crimes. These states are flexing their ability to use universal jurisdiction, whereby perpetrators of international crimes can be prosecuted in these states irrespective of their citizenship or where their crimes were committed.

In addition to the modest number of prosecutions in Europe, there have been a handful of other important developments in the pursuit of accountability for atrocities committed in Syria. In January, a court in Washington ordered a reward of $302.5 million to the relatives of Marie Colvin, the renowned journalist who was killed in an attack by the Syrian Army in Homs in 2012. Following the European Union’s example, Congress also passed a bill that would place sanctions on firms and individuals who “knowingly, directly or indirectly, provides significant construction or engineering services to the Government of Syria.”

Of course, expectations need to be managed. What has been achieved is important but is a drop in the ocean given the scale and nature of atrocities committed in Syria. It does not mean that Syrian President Bashar al-Assad ‘is next’ or will inevitably be prosecuted. It is no secret that accountability for mass atrocities committed during the Syrian civil war has been lacking. Yet this absence of accountability has pushed proponents of global justice to design creative mechanisms when their conventional tools — international courts — are unavailable. What happens next will depend on whether states take advantage of outstanding opportunities to prosecute perpetrators of atrocities in Syria.

New international (criminal) justice tools

From the earliest days of the Syrian civil war, international criminal justice has had little to offer victims and survivors. At first, even the Obama administration, for example, refused to entertain a U.N. Security Council referral of the situation in Syria to the International Criminal Court (ICC) lest it undermine the Syrian peace process. After talks aimed at ending the war failed, the United States threw its weight behind a referral to the ICC in 2014. But Russia, by this point a lifeline for Assad’s regime, balked. Along with China, Moscow vetoed the referral. Efforts to set up an ad hoc tribunal also went nowhere.

Against this backdrop, two important initiatives were launched. The first was the creation of the Commission for International Justice and Accountability (CIJA), which uses on-the-ground Syrian investigators to collect evidence of international crimes committed by the Assad regime as well as the Islamic State. CIJA’s model reverses the conventional wisdom regarding justice for mass atrocities. Rather than waiting for a tribunal to be set up before investigating atrocities, CIJA initiated investigations and offered any prospective court — domestic or international — the evidence that it gathered. The evidence collected by them and others such as the European Center for Constitutional and Human Rights(ECCHR), is reportedly better than what was available at the trials of senior Nazis at Nuremberg.

The second initiative established was the International Impartial and Independent Mechanism (IIIM) for Syria, which works to gather, collate, and preserve existing evidence of atrocities in Syria. The hope is that evidence will be eventually used in an appropriate court. The IIIM was created by the U.N. General Assembly, therefore bypassing the deadlock of the Security Council — and making it unique among accountability mechanisms.

Illustrative of the contribution that the situation in Syria has made to international criminal justice, the work of CIJA and the IIIM will be replicated as tools of global justice. There is now an IIIM for Myanmar, also known as Burma, for example. Meanwhile, evidence of atrocities committed in Syria and collected by CIJA and the ECCHR continues to be used in war crime trials in Europe.

Taking Responsibility

It is ironic that a Syrian perpetrator of war crimes traveling to Europe is more likely to be prosecuted than a Westerner who traveled to Syria to perpetrate atrocities returning home. No Western state is eager to prosecute their own nationals who went to fight for the Islamic State and committed crimes abroad. This is due to at least two reasons.

First, the political discourse in many of these countries reflects prevalent fears that returning Islamic State fighters, as well as refugees more generally, will undermine public safety. The potential return of fighters is not seen as an opportunity to achieve justice for atrocities committed by Islamic State so much as a threat to national security and a burden on the state. As a result, governments often view the repatriation of these fighters as political kryptonite. Second, there are legal hurdles to prosecuting returning fighters who have committed atrocities abroad. These cases are difficult to investigate from London, Washington or Ottawa. In addition, evidence that has been gathered by states may be inadmissible in court or may consist of intelligence provided by partner states that these countries are not authorized to submit at trial. As a result, many of those who have returned are ‘monitored’ by law enforcement bodies rather than prosecuted, adding to the fear that the returning fighters pose a threat to their ‘home’ countries.

The fact that hundreds of former Islamic State combatants are in custody in Kurdistan, Syria and elsewhere represents a rare opportunity: the chance for states to pool their resources, set up an internationalized or hybrid court, and hold perpetrators to account in a comprehensive manner. Perhaps this would require a prosecutorial strategy that focuses on using plea agreements to generate effective evidence and build stronger cases for the most senior perpetrators.

Setting up such a tribunal in the region would offer accountability close to where victims and survivors reside and where evidence still needs to be gathered. At the same time, investigators could work to gather and collate evidence of crimes by other actors in Syria and Iraq, including opposition and government forces. Indeed, it’s important to stress that, for it to be legitimate, any court would have to be able to investigate and prosecute more than just ISIS crimes. Above all, a tribunal of this kind would signal the international community’s interest to finally work together to achieve justice where little has been achieved.

A version of this post was originally posted at the Washington Post’s Monkey Cage blog.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Research 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 Commission for International Justice and Accountability (CIJA), Impartial and Independent Mechanism (IIIM), International Criminal Court (ICC), International Criminal Justice, Syria. Bookmark the permalink.

3 Responses to International Justice has done little for Syria, but Syria has done a lot for International Justice

  1. Pingback: International Justice has done little for Syria, but Syria has done a lot for International Justice – Jehtro Lewis – Blog

  2. Graham Askey says:

    One reason for the reluctance of western authorities to prosecute returning jihadis that you fail to mention is that govts and intelligence services have been supporting jihadi groups, both directly and indirectly, in the fight against Assad. One case in Britain has already collapsed for this reason. Evidently some govts fear the extent of their support will be revealed in court and don’t want the public to know.

  3. Aman Kumar says:

    Kersten, will it not be more logical for any ‘future’ ad-hoc tribunal to just try fighters who were low in hierarchy and then refer the matter to ICC to try senior ones? I mean, if the world community can agree to set up a tribunal, they might also agree for a UNSC referral.

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