By Burc Kostem
There have been several voices from the U.N., including the United Nations High Commissioner for Human Rights Navi Pillay, who have highlighted the personal culpability of the Assad family in the recent events in Syria. Indeed the violence seems brutal and indiscriminate, killing hundreds of children and targeting people who are not able to defend themselves. The moral culpability of Assad is unquestionable, yet there seems to be plenty of evidence that would also lead to a charge of crimes against humanity, as well as breaches of the Fourth Geneva Convention and Protocol II of the Geneva Conventions, against Assad.
Murder of such proportions should definitely solicit a strong moral response from the international community, and this process of creating a narrative for justice in the international community is perhaps the primary function of international criminal law. The Nuremberg trials, Hannah Arendt’s powerful account of Eichmann’s trial in Israel, and the on-going trial of people like Radovan Kradzic by the International Criminal Tribunal for the former Yugoslavia are all testimony to the power international criminal law has in helping shape discourse around justice and forming a collective memory for the victims. Lastly, the indictment of leaders such as Gadhafi and the recent sentence delivered by the ICC to the war criminal Thomas Luganba are also indicators that the ICC will have an important influence in shaping discourse and influencing public perception in a more active way in the coming years. So it is of the utmost historical as well as political importance that an international criminal investigation is initiated. This is an analysis of the different ways in which such an international criminal investigation can be undertaken.
a. Involving the ICC
Murder is a blatant crime against humanity according to the instrument of the International Criminal Court, the Rome Statute. In the explanatory memorandums of the Rome Statute of the International Criminal Court, it has been argued that crimes against humanity are systematic events and not just isolated acts of violence. It has been further explained that to qualify as such the violence in these scenarios must have been a part of government policy or alternatively, condoned or tolerated by government officials. Media reports as well as U.N. reports confirm that the violence in Syria isn’t just random or sporadic, but that it is organized and systematic. Furthermore as pointed out by Ms. Pillay, who has also served as a justice of the International Criminal Court, Bashar al-Assad could simply “issue an order to stop the killings” yet instead continues to target innocent people. According to Ms. Pillay, most of the acts are in fact committed by security forces and require complicity in high levels of command. Therefore under the doctrine of command responsibility, Assad’s failure to prevent and punish the acts of violence perpetrated by the military would mean he is personally criminally responsible for those acts. The doctrine of command responsibility is also codified under Protocol I of the Geneva Conventions, to which Syria is a party.
Therefore the burden of proof in showing Assad’s personal responsibility in the violence isn’t heavy considering the facts of the events. Indeed, a recent report by U.N. legal experts agrees with this conclusion. Similarly, Article 3 of the Fourth Geneva Convention as well as Protocol I of the Geneva Conventions, both of which Syria is a party to, stipulate that in the course of non-international armed conflicts persons taking no active part in the hostilities should be free from violence. So why hasn’t Assad been indicted by the ICC?
There are three ways of engaging the Prosecutor of the ICC: If the government official who is being indicted is from a country which is party to the Rome Statute, then it is possible to exercise the jurisdiction of the ICC. Similarly, if the events in question took place within the boundaries of a country which is party to the Rome Statute, it is again possible to file a case. Yet if it is not a party to the Rome Statute, then the only alternative under normal circumstances is that the Security Council refers the case to the Prosecutor of the ICC. As Syria is not a signatory of the Rome Statute, the only possible alternative is to wait for the Security Council to make such a referral. The U.S., UK and France have already indicated their willingness to refer the case to the ICC, as Hillary Clinton, Alain Juppé (the French Foreign Minister), and David Cameron have indicated.
The biggest obstacle to the prospects of a referral by the Security Council seems to be a possible veto that Russia or China will exercise. Yet such a referral is certainly not impossible or wholly unimaginable as Russia and China can be convinced to not use their veto power. At least their recent tolerance of the investigations instigated against Gadhafi is a hopeful indicator. Professor David Scheffer of Northwestern University has proposed that a Security Council resolution providing Assad with an escape route might be more agreeable. For example, a resolution threatening to refer the events to the ICC if Assad doesn’t leave power and claim asylum in a friendly country within one week may be an acceptable compromise for Russia and China.
b. Establishing an International Criminal Tribunal Outside the ICC
Yet there is a more imaginative alternative to involving the ICC that might invoke even greater support from the Syrian people. Creating an international tribunal supported by the Arab people would carry more legitimacy in the Arab world and revitalize the already forgotten Arab Spring that inspired the latest struggle against Assad’s oppression in the first place. If the role of international law is to provide a narrative for justice in the international community, then surely this is better provided with the decision of the Syrian people who have witnessed the massacres rather than that of the Security Council?
Therefore a regional tribunal agreed upon by the Arab League and endorsed by a U.N. General Assembly resolution could be set up. For example, the Cambodian Genocide Tribunal was also established with the support of a U.N. General Assembly resolution. Aryeh Neier has already argued for such a move in the New York Times and this would definitely create some sort of alternative trial process carrying legitimacy under international law. A regional court established by the Arab League and backed by the U.N., U.S. and EU may also be easier to broker and may be more appealing in the eyes of the Syrian people. Such a court would both have the punitive ability to imprison Assad and at the same time speak to the hearts and minds of the Syrian people better than perhaps the International Criminal Court could.
Of course such an international court would also have to overcome obstacles as such international tribunals are also usually set up by Security Council resolutions in order to carry more authority. Another issue for setting up an International Criminal Tribunal is that of territorial jurisdiction and sovereign immunity. According to how its mandate is formulated and how wide a backing it receives from the Syrian people and dissidents as well as the international community, such a tribunal can claim jurisdiction over the crimes committed by the Assad regime even without the backing of Russia or China. Tribunals of a similar nature such as the International Criminal Tribunal for the former Yugoslavia or the International Criminal Tribunal for Rwanda, both of which were established by U.N. Security Council resolutions, have based their authority on what is known as universal jurisdiction. Under the Geneva Conventions, universal jurisdiction is engaged when a contracting party of the conventions engages in grave breaches of the conventions.
Grave breaches of the conventions are defined by the convention instrument as “…willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person…” In the case of such breaches, any state that is party to the Fourth Geneva Convention “shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.” Enforcing such an obligation on contracting states of the Fourth Geneva Convention would leave Assad with not a lot of countries to escape to. One final obstacle toward claiming universal jurisdiction is that there is some doubt as to whether the term “grave breaches” only applies to persons protected under international conflicts or whether the relevant provision regarding grave breaches is also engaged in the case of internal conflicts. Although the idea of claiming universal jurisdiction in internal conflicts has been supported by figures such as the prosecutor of the ICTY, the issue is not conclusive. Yet the level of trust accorded to the Arab League may well turn out to be too fragile to undertake such a bold initiative under its own auspices. This mistrust in the Arab League itself compounded with the difficulties to establish jurisdiction over the crimes may mean the prospects of establishing such a tribunal are not very good after all.
c. A People’s Court for Syria?
Alternatively a people’s court or Russell tribunal organized by the Arab people themselves could be a solution. These courts are ad hoc gatherings organized by individuals and NGOs that do not have jurisdiction under the normal sense of the word in international law, but rather act as a testimony in helping record the events that took place. Such tribunals have had a tremendous effect on forming a collective memory of the international community and have become important sources of history and social change. For example, the Russell Tribunal on the Vietnam War, organized by the British philosopher Bertrand Russell, was hosted by names like Jean Paul Sartre and has been replicated for many different parts of the world in many different conflicts. Similarly, the World Tribunal on Iraq has captured the attention and imagination of many academics and its findings have been influential in establishing an account of the history of the Iraq war. Its final meeting was held in Istanbul in 2005. This session of the World Tribunal on Iraq was also attended by influential Turkish academics such as Baskin Oran and Turgut Tarhanli. Holding such a people’s court therefore can be of political importance in giving the people of Syria a voice in the international community as well as the means to testify their suffering.
The downside with such a scheme of course is that it is not a scheme recognized by international law and therefore carries almost no legal significance. As it will be organized ad hoc, it is also more open to political manipulation and hijacking by its members than is perhaps an official court. Yet the establishment of such a tribunal could still serve as an important historical and political tool in order to help record the suffering of the victims of Assad’s brutal campaigns and give a greater voice to the people of Syria within the international community.
In conclusion, the ideal scenario for instigating a criminal procedure is to engage the ICC through convincing Russia and China to abstain from using their veto powers. As for establishing a people’s court, the benefits from such an international court should not be exaggerated; they are benefits of an indirect nature and do not carry the same weight as a decision from the ICC might. The priority must be to help convince Russia and China to not use their veto powers in the ICC. Yet in the absence of a referral to the ICC, there is no harm in engaging political dissidents from Syria, non-partisan NGOs and other international institutions to help establish a people’s court.
1. RSICC/C, Vol. 1, p. 360
3. Cassese A, 2010, International Criminal Law, Oxford University Press UK