More can be done, especially here in the West, to hold people accountable for the situation in Syria. While none is perfect and some difficult to imagine, here are the options that have been proposed:
Investigation by the International Criminal Court
French President François Hollande is adamant that Russia could face consequences for its actions in Syria at the ICC. So stringent is his call for the ICC to prosecute Russian war crimes that President Vladimir Putin postponed a visit to France until it is “comfortable for President Hollande.” By suggesting that the ICC could investigate crimes in Syria, with or without Russian forces, France is setting unrealistic expectations and denying both reality and history.
The only way the ICC can achieve territorial jurisdiction in Syria is if the U.N. Security Council refers the situation in the country to the court. Demands for such a referral from the U.N. Security Council are as old as the conflict itself. Initially, there was little appetite to have the ICC involved. In 2012, then-Secretary of State Hillary Clinton said that prosecuting Bashar al-Assad at the ICC would not be “useful” to peace. It wasn’t until 2014, following a failed round of peace talks, that the United States threw its support behind a referral of Syria to the ICC — and only when it was perfectly clear that Russia would veto any such referral (which Moscow predictably did).
There is a possibility, hinted at by French authorities, that the ICC could investigate perpetrators in Syria who are citizens of ICC member states. The court would have what is known as “personal jurisdiction” over such actors. Fatou Bensouda, the chief prosecutor of the ICC, has acknowledged this possibility in the context of prosecuting Islamic State combatants from states like Jordan, Tunisia, France and the United Kingdom. However, she has also said that the Islamic State “is a military and political organization primarily led by nationals of Iraq and Syria,” and therefore “the prospects of my office investigating and prosecuting those most responsible, within the leadership of the Islamic State, appear limited.”
In short, there may be war criminals from ICC member-states, but they aren’t senior enough to warrant scrutiny from the court.
The cost of a Security Council referral of Syria for the ICC could be high. The relationship between the council and the court is far from healthy. The ICC has been requested by the council to investigate two situations before — Darfur in 2005 and Libya in 2011. In neither case has a single individual indicted by the ICC faced justice in The Hague. And in neither case did the Security Council, on the whole, seemed perturbed by this reality. The political carve-outs apparent in every council referral to date, including the failed referral of Syria to the ICC, do significant damage to the credibility and impartiality of the court.
An ad hoc tribunal
Beyond the ICC, some believe it would be possible to set up an ad hoc tribunal with a mandate to prosecute atrocities in Syria and Iraq. Such a tribunal would likely come in the form of a hybrid court and include a mix of domestic and international prosecutors and judges. Numerous observers, primarily American scholars and lawmakers, have pushed the establishment of such an institution, going so far as to draft a “blueprint” for institution’s statute. As with an ICC referral, their efforts have been unsuccessful to date.
The primary task — and immensely tall order — for proponents of an ad hoc tribunal is to design a tribunal that would satisfy two conditions. The first is to manage to prosecute all sides in the war that have committed war crimes. The second is to retain the support of the major actors in the Syrian civil war, many of whom are implicated and would be prosecuted, for those war crimes. It goes without saying that this is an unprecedented challenge.
Another key concern regarding the creation of an ad hoc tribunal pertains to its possible location. Given ongoing violence and instability, a tribunal could not be based in Syria. Iraq is a possibility, but there is zero indication that Baghdad would be interested in hosting. Iraqi authorities would be loath to see a tribunal created — which could subsequently target its own military or government officials for their role in combating the Islamic State. Some have proposed Jordan and Turkey as options, but there is no indication that they would be interested in hosting such a court.
That leaves Kurdistan, which is currently being explored as a potential option to house a tribunal. The semiautonomous province has the advantage of being in the “neighborhood” and closest to the evidence, as well as to victims, survivors and witnesses of atrocities in Syria and Iraq. Kurdistan also enjoys relative stability and could provide the security measures necessary to host an internationalized court. But it’s unclear whether Irbil and its Western allies, especially the United States, would want to rankle Baghdad over an investigation of war crimes committed in Syria and Iraq.
Cost is also a factor. Tribunals are remarkably expensive and Kurdistan could not afford such a tribunal on its own and would surely have to rely on Western powers for funding. This could lead to allegations of any such court simply doing the bidding of Western states. Indeed, ad hoc and hybrid tribunals are more easily prone to political manipulation by powerful states than the ICC, a fact that may explain Washington’s preference for such institutions in Syria and elsewhere.
Domestic prosecutions of international crimes in Western states
While there has been a handful of prosecutions of Syrian war criminals in Europe, the West’s record of international justice remains minimal. Western states could be doing more, and much closer to home, to support accountability for crimes committed in Syria.
For one, states could boost their support of groups, including the Commission for International Justice and Accountability. Such organizations take unimaginable risks to collect evidence on the ground and smuggle out it out of Syria. When the day comes for a tribunal to prosecute war crimes in Syria, it will undoubtedly rely significantly on the evidence such groups can collect. The efforts of human rights and Syrian opposition groups over the last few years to collect evidence of international crimes and prepare case files for eventual prosecution may not bear fruit now, but they have not been wasted.
Western states could also make it a priority to prosecute those war criminals currently residing in Western states and support their prosecution in areas where perpetrators have fled, including the refugee camps in Lebanon, Jordan and Turkey. The list of such perpetrators is long and growing, as alleged war criminals are identified hiding among refugees in Europe.
Prosecutions in Western states would represent a drop in the ocean of what is needed, but fair and transparent prosecutions would send a signal that Western governments are committed to achieving whatever justice and accountability is currently feasible. It would close the gap between the West’s rhetoric on the need for justice and the resources it is actually willing to expend on achieving accountability.
Justice in Syria — imperfect options
International justice for Syria is not on the horizon. Suggesting that it is raises false hopes and unfair expectations. This is something that all actors need to be wary of. But more can be done right now to support and achieve a degree of accountability for the victims and survivors of war crimes in Syria.