Subcommittee Hearing: The ISIS Genocide Declaration: What Next?

Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations | 2172 Rayburn House Office Building Washington, DC 20515 | May 26, 2016 12:00pm to 3:00pm

Webcast:

Witnesses

Mr. Carl A. Anderson
Supreme Knight
Knights of Columbus
[full text of statement]
[truth in testimony form]

Mr. Sarhang Hamasaeed
Senior Program Officer
Middle East and Africa Programs
U.S. Institute of Peace
[full text of statement]
[truth in testimony form]

Mr. Johnny Oram
Executive Director
Chaldean Assyrian Business Alliance
[full text of statement]
[truth in testimony form]

Mr. David M. Crane
Professor of Practice
Syracuse University College of Law
(Former Chief Prosecutor, United Nations Special Court for Sierra Leone)
[full text of statement]
[truth in testimony form]

Ms. Naomi Kikoler
Deputy Director
Simon-Skjodt Center for the Prevention of Genocide
United States Holocaust Memorial Museum
[full text of statement]
[truth in testimony form]

Obama exploring how to prosecute Islamic State for genocide

The administration declared two months ago that ISIL is committing genocide. Now comes the hard part.

The Obama administration, having declared two months ago that the Islamic State is committing genocide, is now grappling with how to actually prosecute the terrorist network’s fighters for the crime.

Early-stage discussions about international tribunals and other means of justice are taking place in the White House and the State Department, people familiar with the talks told POLITICO. Any genocide prosecution, however, could be years away, a task made all the more complicated by the unusual nature of the Islamic State and the high bar for evidence.

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The administration’s top priority remains defeating the jihadists on the battlefield in Iraq and Syria, an approach that has been more about killing than capturing the enemy.

The discussions on prosecutions come as President Barack Obama and his aides, who spent months deciding whether to even use the word “genocide,” face growing pressure to prove that invoking the label has serious consequences, even if it doesn’t lead to an increase in America’s military commitment.

On Thursday, a House subcommittee is holding a hearing titled “The ISIS Genocide Declaration: What Next?” Some lawmakers also are pushing legislation making it easier to arm and protect Christians, Yazidis and other groups threatened by the Islamic State, which also is known as ISIS, ISIL or Da’esh.

House Foreign Affairs Committee Chairman Ed Royce is among those urging the administration to work with the international community to set up tribunals to try the jihadist fighters for genocide and other war crimes.

“It’s critical that we actually defeat the terrorists and bring those responsible for these atrocities to justice,” said Royce, a Republican from California. “The president’s lack of a plan is inexcusable.”

Secretary of State John Kerry declared on March 17 that the Islamic State is committing genocide against Yazidis, Christians and Shiite Muslims, a rare step for the U.S., which has historically tried to avoid the label. But Kerry added that his declaration did not amount to the conviction of any individuals.

“The full facts must be brought to light by an independent investigation and through formal legal determination made by a competent court or tribunal,” he said. “The United States will strongly support efforts to collect, document, preserve, and analyze the evidence of atrocities, and we will do all we can to see that the perpetrators are held accountable.”

Shaun Coughlin, a foreign affairs officer in the State Department’s Office of Global Criminal Justice, would not confirm nor deny if the administration is examining ways to prosecute the jihadists for genocide. Instead he said the administration supports efforts to hold accountable those behind “heinous acts.”

“There are venues at national and international levels in which accountability could be pursued, including the International Criminal Court in appropriate circumstances,” Coughlin said.

Prosecuting members of the Islamic State for a crime like genocide, a term that carries unusual weight in the international legal lexicon, will involve dealing with a web of complicated issues.

For one thing, the Islamic State is not recognized as a bona fide state and its members are thus considered “non-state actors.” The group also has attracted fighters from all over the world, meaning individual nations may have different points of view on how their citizens should be treated.

The terrorist network also has an administrative hierarchy, which could prompt questions about which fighters should be held responsible for acts planned by their superiors. And many of the local residents of Iraq and Syria whom the group has enlisted may have had no choice in the matter.

As the U.S.-led coalition fighting the Islamic State prepares for battles in urban centers such as Mosul, Iraq, and Raqqa, Syria, the administration is reportedly grappling with the more basic question of where to imprison a potentially large number of detainees.

Turning over detainees to the Iraqi government is an option the U.S. already has used because Baghdad is an ally. But it’s not that simple in Syria, where the U.S. has backed rebel factions seeking to oust President Bashar Assad. (Whether Assad, who is backed by Russia, will ever be held responsible for his regime’s crimes is another issue the U.S. and its allies are pondering.)

Beyond detaining them, trying to prove that members of the Islamic State committed genocide could require a special legal architecture and extensive evidence, some analysts said.

U.S. law defines genocide as killing or other specified acts committed with a “specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group.” It’s a different, higher bar than the more general “crimes against humanity,” “war crimes” or other allegations, even if the punishments ultimately are similar.

“Genocide is a very difficult crime to prove. It’s a specific intent crime. You almost have to have a smoking gun to do it,” said David Michael Crane, the founding chief prosecutor of the Special Court for Sierra Leone, a war crimes tribunal that dealt with the fallout from the African country’s 1990s civil war.

Crane indicted former Liberian President Charles Taylor for his role in the Sierra Leone conflict; the African leader was eventually convicted of war crimes and crimes against humanity, and is serving a 50-year prison sentence — one of the most high-profile such cases.

Overall the international community has a mixed record of holding to account perpetrators of genocide and related crimes. Sudanese President Omar Bashir, for instance, has been indicted by the International Criminal Court for genocide in the Darfur region, but he has refused to appear and has traveled abroad freely despite an outstanding warrant for his arrest. On the other hand, the International Criminal Tribunal for Rwanda convicted dozens of people for their roles in the 1994 genocide. Those convicted typically get long prison terms.

Crane has talked to members of the Obama administration about ways to bring Islamic State members to justice over allegations including genocide. He said he expects little to get done anytime soon, in part because it’s an election year.

“We can do this, we have the experience, the jurisprudence. The challenge is the political will to do it,” Crane said.

Steve Oshana, an Assyrian Christian activist who also has dealt with administration officials on how to hold the Islamic State accountable, said his sense is that they’d rather set up a new tribunal with global allies than use the International Criminal Court, which is exceedingly slow.

“Certainly there’s no talk about the U.S. setting up its own tribunal,” Oshana added. “What they don’t want to do is to create more fodder for ISIS propaganda. It would have to be an international deal.”

U.S. lawmakers appear on board with that idea. Just days before Kerry’s declaration, the House of Representatives overwhelmingly passed a resolution urging the creation of a war crimes tribunal that could bring justice to anyone suspected of genocide, war crimes and crimes against humanity in Syria.

Coughlin, the State Department official, said the U.S. Transitional Justice Global Initiative is helping civil society members in Iraq develop protocols and gather evidence to hold human rights violators accountable. At least 29 Iraqi civil society activists have collected some 600 narratives from victims and witnesses of atrocities, Coughlin said.

Some observers worry that such programs aren’t moving fast enough. They fear that evidence that can prove genocide — whether it’s documentation or mass graves — will be lost or destroyed as the fighting continues.

They also point to concerns that certain ethnic and religious minorities will remain vulnerable to violence from other armed groups even after the Islamic State is defeated, especially if the array of grievances that gave rise to the terror network are not addressed.

“Fighting ISIS is not the same as having a comprehensive strategy to prevent genocide, mass atrocities and war crimes. It’s an essential aspect, but there’s more to it,” said a congressional aide familiar with the administration’s talks.

Read more: http://www.politico.com/story/2016/05/isil-genocide-obama-war-crimes-223526#ixzz4A0eP7qJR
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For a simple overview of the conflict, a casual reader can turn to Wikipedia’s entry for the “Syrian Civil War,” which has no less than 860 footnotes. An advanced reader might turn to the myriad of reports produced by international human rights and Syrian civil society organizations, including the Syria Justice and Accountability Centre, to learn detailed information about the record of violations that have occurred since the start of the conflict.

This record of abuses will be critical in assessing justice and remedy mechanisms for the survivors. And there are a lot of survivors to consider — estimates of up to 470,000 people killed, half the population displaced, and an unfathomable 4 million plus refugees as of July last year. Reparations processes for survivors, and the country as a whole, must be as robust, widespread, and multidimensional as the conflict itself, and, to be effective, will need to prominently include the active participation of victims, the families of the slain, and the survivors of trauma. In particular, women, who have largely been absent from peace negotiations, must be actively involved.

Funding such a robust and inclusive reparations in post-conflict Syria will be problematic, however. This is where one of the most complicated wars in modern history meets its match in a politically, legally, and socially complex area of remedy: stolen asset recovery and repatriation. Despite the complexities, Syrians, having survived a domestic uprising and the military interventions of dozens of states, could be up for the challenge.

Recognized as “one of the most complex projects in the field of law,” international asset recovery includes the tracing, freezing, confiscation, and repatriation of illegally obtained proceeds located in foreign jurisdictions. The history of stolen asset recovery and repatriation is not simple. It takes significant political will to reach the point of identifying and freezing the assets of political leaders and their associates in foreign countries. And freezing assets is only the beginning of a contorted series of legal and political confrontations to determine to whom the assets rightfully belong, how to distribute and allocate the funds, and who gets to decide. These questions will turn on interpretations of Syrian law, as well as international law and the laws of the jurisdictions where the assets are found.

While Switzerland, the European Union, and the United States announced asset freezes of accounts held by the Assad family and associates in 2011 and 2012, many commentators opined that the total amount frozen (£100 million in the United Kingdom, $78 million in the United States, and 70 million Swiss Francs) is likely a very small proportion of the assets abroad, most of which are presumed to be concealed in jurisdictions less likely to identify and freeze accounts, such as Russia, Hong Kong, or other states in the Middle East/North Africa region.

Even within the small portion of wealth that has already been frozen, arguments are already surfacing with regard to its legal and rightful ownership, with both the government and opposition making claims over the assets. Even non-Syrians may have legal claims over the funds. For instance, lawyers representing the family of Steven Sotloff, an American journalist beheaded by the Islamic State of Iraq and al Sham (ISIS), have filed a civil suit against the Syrian government and may be eligible to recoup a fraction of the frozen assets if the court finds in the family’s favor and the Syrian government refuses to pay damages.

The World Bank’s Arab Forum on Asset Recovery, a 2012 initiative to support asset recovery by Arab countries in transition, is now entering its fifth year, but it has not yet proven particularly successful in wading through the competing legal perspectives of the “home” and “host” states, nor the political discord that accompanies these differences in views.

The one bright spot in this otherwise entangled dynamic is the increasingly useful and relevant role of civil society’s participation in conversations about how to identify public assets as such and return them to their true beneficiaries — the people. Given the extraordinary international attention on Syria, domestic civil society, with support from colleagues and allies in “host” countries as well as in other countries that have relevant experiences to share (such as Kazakhstan, Nigeria, Angola, Equatorial Guinea or Ukraine), could play a very prominent role in leading the conversation about the possibilities for open, clear adjudication of disputes over the assets and their disposition.

If there is any silver lining to the horribly grey clouds that have hovered over Syria for the past several years, it might be that there is both international space for Syrian civil society to be heard, and that such space might actually prove useful as a starting point for citizen-government dialogue. Starting with even a relatively tiny fraction of Syria’s resources — a mere few hundred million USD — has untold potential not only for providing remedy to those devastated by the violence and for rebuilding key support systems but also for building trust, stable governance, and the equitable distribution of resources.

Despite the political obstacles, isn’t it at least worth a shot?

Erica Razook sits on SJAC’s Board of Directors and is a Syrian-Lebanese American anti-corruption lawyer and certified fraud examiner living in New York. She participated in the 2014 Arab Forum on Asset Recovery and supported civil society efforts to repatriate stolen assets to Equatorial Guinea, Nigeria, and Ukraine in her former role at the Open Society Foundations, including coordination of the civil society-led event on the topic at the 2015 UN Financing for Development Conference in Addis Ababa.

For more information and to provide feedback, please contact SJAC at info@syriaaccountability.org.