On May 12, the Syria Justice and Accountability Centre (SJAC) hosted a panel to launch a report entitled “A Step Towards Justice: Current Accountability Options for Crimes under International Law Committed in Syria.” One of the panelists, Jennifer Trahan from New York University’s Center for Global Affairs, wrote a full conference paperoutlining her arguments, which can be found in SJAC’s Transitional Justice Library. The following is a summary of the nine points from Trahan’s panel presentation and conference paper.
1. All sides of a conflict must be prosecuted.
A future tribunal in Syria cannot have jurisdiction only over “ISIS” or “Assad regime” crimes. The Special Court for Sierra Leone, for example, increased its legitimacy when it prosecuted perpetrators from all three key warring factions from the Sierra Leone Civil War. Hybrid tribunals are not inherently one-sided, and it is the international community’s responsibility to ensure that the mechanism prosecutes all key perpetrators.
2. We have to start somewhere.
I agree with the SJAC report that a Syria tribunal may be years away. For now, there are pockets of jurisdiction that need to be utilized, including the ICC which has limited jurisdiction over “foreign fighters” who are from countries that are State Parties to the Rome Statute. Here I disagree somewhat with the SJAC report. I think it would make a powerful statement for the ICC to prosecute foreign fighters. Even lower ranking perpetrators could trigger the court’s gravity threshold.
3. Do not wait for peace to pursue accountability.
The SJAC report states “it is urgent to pursue some form of justice prior to the end of the conflict.” If one waits until all the crimes are over before attempting to pursue justice, then there is no possibility of deterrence. While it is indeed hard to prove that international justice causes deterrence, the international community can only use the tools that it has at its disposal.
4. The appearance of fairness takes priority.
The Iraqi High Tribunal (IHT) provides many lessons on why impartiality is vital. The IHT’s appearance of fairness was undermined due to shortcuts in due process and political interference, but it was the incorporation of the death penalty into the IHT Statute that led Europeans to discontinue their cooperation with the IHT. This was not the kind of internationalized approach one would like to see, and it also gave the optics that the US, the only country left providing assistance, was in a position to control these trials. Although the vast majority of Iraqis were in support of the death penalty, this issue ultimately undermined what the IHT otherwise could have accomplished.
5. Imperfect justice may be better than no justice.
Here, my remarks are again somewhat different from the conclusions in the SJAC report. The negotiations for the Extraordinary Chambers in the Courts of Cambodia (ECCC) were very lengthy and there was always concern that the resulting tribunal would be susceptible to manipulation by the Cambodian government. It may have been imperfect, but had the international community insisted on a perfect ECCC, there likely would have been no accountability for the approximately 2 million victims.
6. Mass atrocity crimes must be addressed with a multi-tiered solution.
The ICC has limited capacity and would not be sufficient to prosecute all the perpetrators in Syria. The same is true for an ad hoc or hybrid tribunal. And, at the national level, Syrian courts will need increased capacity to adjudicate war crimes. The solution, ultimately, as the SJAC report points out, should eventually include a multi-tiered approach that includes truth commissions, reparations, memorialization, vetting, and security sector reforms.
7. Projecting oncoming accountability is important for deterrence.
In recent years, the ICC Prosecutor has travelled to both Kenya and Guinea to announce that anyone who incites violence will be subject to an ICC investigation. The ICC Prosecutor should also put out a robust message that she is continuously watching and assessing the situation in Syria because it is important for the international community to let it be known that prosecutions can and will occur. It is through these kinds of actions that one hopes deterrence may occur.
8. Justice must not be bargained away at the negotiating table.
In the event of peace negotiations for Syria, as were attempted previously in Montreux, Switzerland, they must leave open the possibility for accountability to occur. Ideally, there would be a clear commitment to prosecutions. Second best, would be to ensure that future accountability is not foreclosed.
9. We need optimism to stay the course.
For years, it was unclear whether Radovan Karadžić and Ratko Mladić, as well as other ICTY indictees, would end up in The Hague. And yet they did. The SJAC report presents a number of reasons why hybrids or the ICC could not work. Yes, tribunals come at a high price, but doing nothing has a higher cost. When one has lofty goals, one must also have optimism
While prosecution is always second-best to preventing the crimes in the first place, the field of international justice has come too far for the horrific atrocity crimes being perpetrated in Syria today not to warrant a robust response from the international community. Every state owes a responsibility to ensure this happens.
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