At the 12th session of the Assembly of States Parties (ASP) of the International Criminal Court, held in The Hague from 20-28 November 2013, considerable attention was given to the issue of ensuring accountability for international crimes in Syria. One side-event on this issue included participation of senior members of the Syrian National Coalition, representatives of States Parties and NGOs. Human Rights Watch (HRW) advocated a two-tiered approach to accountability: first, an ICC referral as a vital ‘reference-point’; and secondly, a mechanism within the Syrian justice system. HRW envisages that this could be “a specialized judicial mechanism embedded in the national justice system with the active participation of international investigators, prosecutors and judges”, similar to the War Crimes Chamber in Bosnia and Herzegovina’s State Court (WCC). An ‘internationalised’ Syrian-led institution modelled on the WCC was also endorsed by US Ambassador-at-Large for War Crimes Issues, Stephen Rapp.
Possibilities of an internationalised Syrian justice mechanism have been under consideration for some time. In July 2013, international legal practitioners and academics in consultation with Syrian participants drew up a Draft Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes. The Draft Statute provides that the tribunal would sit in Damascus and be comprised mainly of Syrian judges and prosecutors, with limited involvement of international personnel. The Draft Statute has been subject to critique (see this post by Dov Jacobs). It is also worth recalling the ICTJ’s assessment of the WCC’s legacy: “The creation of the [WCC] has taken place 10 years after the end of the war, in a country with a functioning infrastructure and administration, skilled human resources, a strong and powerful international presence under the political authority of the OHR, and the military presence of the EUFOR multinational force … Two of the strongest assets of the [WCC] are the level of domestic ownership of the process and their potential to leave positive legacy for the broader justice system.” The WCC also benefited from jurisprudential and fact-related groundwork laid by the International Criminal Tribunal for the former Yugoslavia.
A Syrian mechanism could avoid the stalemate that continues to prevent a Security Council referral to the ICC (discussed by Mark Kersten here). However, possible benefits of a locally-embedded mechanism are not likely to be obtained in the Syrian context in the near future. Such a mechanism cannot be established while the conflict continues to rage. Not only is this impossible for security reasons, but regime change seems a necessary prerequisite for such a mechanism. In addition, the WCC operated in a society with functioning infrastructure. It is likely that in Syria, significant institutional reforms and capacity building will be required to ensure an independent judiciary. If international staff were to dominate a Syrian mechanism, benefits associated with local ownership could not be realized, and similar problems may arise as plagued international justice efforts in Timor-Leste (see the ICTJ’s analysis here). In the meantime, impunity continues to reign.
With news last week that the Free Syrian Army plans to shun a peace conference in Geneva in January 2014, a ceasefire is not likely any time soon. Should judicial accountability be delayed until local conditions are satisfactory? A Security Council referral while the conflict endures could put military and political leaders on notice that they are under scrutiny, incentivize parties to abide by their international obligations and provide a concrete platform for further accountability efforts. The international community should not shift its focus away from a Security Council referral in favour of a Syrian-led alternative, but rather, as is advocated by HRW, different mechanisms should complement one another, reflecting a comprehensive approach to accountability.