Stephen J. Rapp joins JiC for this contribution to our ongoing symposium on ‘Rethinking Peace and Justice‘. Rapp is is an American lawyer and the former United States Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice. 

(Photo: Anadolu Agency)

The publication of Rethinking Peace and Justice is timely because these issues continue to resonate in some of the most significant policy debates of our time.  But this is not because there is a greater possibility that high-level actors will face criminal prosecution for serious violations of human rights that constitute international crimes.  Far from it.  It is because of the potential legal consequences of doing business with such actors in the absence of a process of justice for their victims.

At present, international criminal justice is receiving less support from major powers than at any time since the end of the Cold War.   It has been eleven years since an ICC arrest warrant was issued for Sudan’s Omar al-Bashir.  He is now out of power, jailed for corruption in Khartoum, and may finally be on his way to the ICC.  But if it happens it will be without the kind of US-supported ‘carrot and stick’ strategy that brought Milovevic to The Hague in June 2001, two years after his indictment.  And what has happened to Saif Gaddafi, more than six years after the ICC held that he was not facing genuine proceedings in Libya, and must be transferred to its custody?

Sudan and Libya were referred to the ICC under UN Security Council resolutions adopted under Chapter 7 of the UN Charter, albeit with no ongoing political support. Meanwhile, the Syrian people have suffered the worst atrocities of the 21^st Century, while Russia has cast or threatened vetoes of even the weakest UNSC resolutions critical of the Syrian regime.  While European prosecutors have issued arrest warrants for key subordinates of Bashar al-Assad, and mid-level officers will soon go on trial in Germany, is there a realistic possibility that Assad will ever be sought by an international court?

But this is to put too much focus on what happens in international criminal courtrooms, and not enough on the economic consequences for countries whose leaders have scorched the earth, killing so many of their own people while disabling and impoverishing so many more.  What if the means to rebuild such countries are blocked?  For a dictator it can be possible to live in luxury while ruling over ruins, but what of those who have killed in his name, when there is insufficient reward for their service, and what about those less loyal supporters for whom there is nothing?  Unless the funds begin to flow, even a dictator can become dispensable.

But how long should the surviving population be forced to live in the ruins?  For how many years will unsettled refugees need safe haven and sustenance from third countries?  What of the risk that an even more brutal conflict will arise from the ruins?  So the peace vs justice argument is renewed in today’s debate over whether to allow the aid and trade that would reconstruct Syria with no real change in the Assad dictatorship.

Interestingly, major powers are providing much more support for the justice side on the reconstruction issue than they are for justice in international criminal courts.  Consider the “Caesar Civilian Protection Act” that became US law on 20 December 2019 after large bipartisan majorities in both the US House and Senate voted to include it in the annual National Defense Authorization Act (NDAA).  The Caesar Act sets forth a “Statement of Policy” that

…diplomatic and coercive economic means should be utilized to compel the government of Bashar al-Assad to halt its murderous attacks on the Syrian people and to support a transition to a government in Syria that respects the rule of law, human rights, and peaceful co-existence with its neighbors.

To implement this policy, it mandates that the Secretary of State to develop “…a strategy to deter foreign persons from entering into contracts related to reconstruction in the areas…in which civilians have been subject to forced displacement.”   It requires the Secretary of the Treasury to determine if “…reasonable grounds exist for concluding that the Central Bank of Syria is a financial institution of primary money laundering concern,” and if he so determines to proceed to implement ‘special measures’ imposing onerous conditions on entities having transactions with the Central Bank.  Treasury is also mandated to apply sanctions to “foreign persons” who are supplying various services to Damascus, including those who “…knowingly, directly or indirectly, provide significant construction or engineering services to the Government of Syria.”

Of course, the United States and European Union have already applied sanctions to a long list of persons based on their participation or assistance in the actions of the Syrian military and intelligence services.   It has become almost conventional wisdom to assert that such sanctions are ineffective because the listed persons are unlikely to travel or conduct transactions in their own names in countries where these sanctions would be enforced.   But the Caesar Act widens the net to reach those who provide anything other than strictly humanitarian assistance in areas under the control of the Syrian regime.  It can reach banks and other entities whose operations necessarily include transactions in the New York financial hub.

The US criminal prosecution of BNP-Paribas was in part for violations of US sanctions that were imposed on transactions with the Government of Sudan because of Secretary of State Colin Powell’s determination that it was engaged in genocide in Darfur.  This prosecution resulted in an astounding $8.9 Billion recovery from BNP-Paribas that was announced by US Attorney General Eric Holder in June 2014.  The criminal case opened the door for Darfur victims to pursue a civil action in US federal court.  In May 2019, the 2nd Circuit ruled that the victims and survivors could proceed against BNP-Paribas and make use of federal diversity jurisdiction, to sue BNP-Paribas for injuries inflicted in Darfur and avoid the effect of the US Supreme Court’s Kiobel decision that limited Alien Tort Claims actions.

Sanctions like those that will be imposed under the Caesar Act can further open the way for criminal prosecutions and civil suits by victims against companies because such actions will not require proof of nexus and knowledge as to the human rights violations.  They will not need to prove the complicity in atrocity crimes as now required in cases like the current French prosecution of LaFarge Holcim Ltd arising out of alleged payments to the Islamic State in Syria or like the Swedish prosecution of Lundin Petroleum executives for allegedly employing armed groups to clear civilians from land where the company wished to drill for oil in what is now S. Sudan.  It will only be necessary to show that the defendants knowingly dealt with sanctioned individuals or companies.

It is not just the United States that is active in imposing such sanctions.  The European Union has also sanctioned numerous persons in order to restrict support for the Syrian Regime.   The United Kingdom has enacted the Sanctions and Anti-Money Laundering Act of 2018 in order to create a new legislative framework for the imposition and enforcement of sanctions after its departure from the European Union.  In fact, the trend in Europe is to spread the net wider, particularly to reach those whose activities contribute to human rights violations, as seen by the vote in the European Parliament in March 2019 to direct the European Council to establish a Global Magnitsky-like sanctions authority in the European Union.

At the same time, the EU has maintained a diplomatic and development policy against reconstruction in areas controlled by the Syrian regime.  While there are EU member states that have pushed in the other direction, the International Crisis Group in a November 2019 report found that the current policy remains “largely stable” with all but humanitarian aid continuing to be conditioned on

…genuine progress toward political transition as defined by UN Security Council Resolution 2254. …This political stance, led by the UK, France and Germany (the “E3”), assumes that supporting reconstruction without a genuine transition would be a wasted, if not harmful, investment, legitimising a regime they consider criminal.

Of course, assistance for Syrian reconstruction need not come only from the West.  But the Syrian regime’s options are limited.   Its major international supporters, Russia and Iran, are also subject to heavy sanctions for reasons not directly related to their engagement in Syria.  China could be expected to become involved, but its pattern of emphasizing big projects financed by large debts would not meet the broad needs of Syrian reconstruction.  It is thus no wonder that the Syria Pound which lost 95% of its value between 2011 and 2019, was declining at a record rate in January 2020.  Even if the regime is successful in retaking all of its territory (which appears unlikely given the Turkish military presence in Idlib), its domestic supporters can no longer look forward to a victory “dividend.”  Indeed, Assad has now taken to extorting funds from those who were his greatest loyalists.[4]

Meanwhile, the peace processes, whether under UN-auspices or the “Astana format” avoid all mention of justice and accountability, and make no progress.  The lesson remains the same as the one taught by failed peace agreements like the Lome accords for Sierra Leone in 1999.  When international actors pursue peace without justice, they achieve neither.

Of course, it is very difficult to obtain agreement with leaders to sign accords that will leave open the door to their prosecution.   But as unconditional amnesties for atrocity crimes cannot be upheld by international courts, it is best to confront reality and include transitional justice processes in the agreement.  At the very least, for the accords to be of any value, particularly in encouraging the return of refugees, they must include provisions that open the way to truth, repair the victims, and provide protection of civilians from the recurrence of serious violations of their human rights.

A good start would be inclusion in the peace agenda of the ten principles set forth by 25 jurists (including the author) in a public declaration issued in September 2018 “on legal obligations when supporting reconstruction in Syria.” Among these were well-established provisions of international human rights law such as those included as the third and eight principles:

3. The whereabouts of missing and disappeared persons must be investigated, documented, and disclosed….

8. Violations of international criminal law and criminal breaches of international human rights and humanitarian law must be credibly and effectively investigated, prosecuted, and adequately punished.[5]

The conveners of negotiations for peace in Syria must insist that such principles be on the agenda, and that representatives of the victims participate in any talks about the derogation of their rights.  As suggested by the authors of Rethinking Peace and Justice, it may be that an agreement that provided credible processes to establish the truth, provide reparations, and deter recurrence could be broadly accepted–even without provision for prosecutions.   But in the absence of such acceptance, donors, funders, and partners should not begin to provide aid and open trade with the Syrian regime.