Possible Justice Mechanisms for a Future Syrian War Crimes Tribunal

Testimony of David M. Crane Before the House of Representatives Subcommittee on Africa, Global Health, Global Human Rights and International Organizations

(Oct. 30, 2013)—The civil war in Syria has now entered its third year.  Started initially by, of all things, children protesting in Daara, the protests blossomed into full scale civil war the following month.  A part of the so-called “Arab Spring”, the unrest in Syria has now turned ugly.  The conflict has become personal and with that the brutality by all sides against combatants and civilians caught up in the melee has intensified. This was no more so than on August 21, 2013 when the regime of President Bashir Assad launched sarin gas projectiles into a suburb of his own capital, Damascus.  The results were horrific.  Almost 1500 people perished, hundreds of them children.  For the third time in 30 or so years chemical weapons were used in the Middle East in violation of international law, clearly a war crime.

Mankind is better than this.  Over the past 20 years the international community, in most instances led by the United States, has developed what I call the modern international criminal law system.  Through trial and in some cases error, mankind has finally resolved to punish dictators, tyrants, and thugs who murder, rape, maim, and mutilate their own citizens. The two ad-hoc tribunals for Yugoslavia and Rwanda, the hybrid courts to include Sierra Leone and Cambodia have created the proper procedures, evidentiary rules, and the jurisprudence to deal with heads of state who kill and destroy.  We have made great strides, but we are only at the beginning of a beginning.

David Crane and Students at Testimony-103013
Syracuse University College of Law student leaders of the Syrian Accountability Project (SAP) stand with Professor David M. Crane L ’80 and Rep. Chris Smith (R-NJ), Chair, House Foreign Affairs Committee Sub-Committee on Africa, Global Health, Global Human Rights, and International Organizations. At a hearing Oct. 30, 2013, the sub-committee listened to testimony by Crane in support of a Syrian War Crimes Tribunal, which possibly would rely on evidence gathered by the SAP. (L to R) Chris Elliot L ’15; Michelle Parker L ’14; Professor David M. Crane; Rep. Chris Smith; Jeff Howell L ‘14; and Dan Haverty L ‘15.

As the world’s only permanent court, the International Criminal Court, tries to finds its place in this evolution, we have come to realize that the future of modern international criminal law is not with the ICC but with domestic legal systems.  This was even contemplated and called for in the Rome statute that created the ICC.  It must be noted here that the ICC was designed to be a court of last resort, not one of first instance, therefore it is incumbent on the states-parties themselves to prosecute those who commit war crimes, crimes against humanity, or genocide it they are willing or able to do so.

We can prosecute heads of state for international crimes.  The law now provides for this and we have done it once before in the likes of Charles Taylor, the now former President of Liberia a convicted international criminal whom I indicted in March of 2003. So how do we do this in Syria?

Allow me to digress and to brief this committee on efforts to date to build a case against Bashir Al Assad and his henchmen as well as the Syrian Resistance.  Shortly after the Syrian unrest evolved into a civil war, Syrians and others began to discuss transitional justice mechanisms to hold accountable the Assad regime and over time, members of the resistance who violated both international and domestic law.  Governmental and nongovernmental organizations began work on documenting and cataloging the atrocities committed in Syria. Human rights groups within Syria itself began to report and to feed key data to these organizations.  Of note, the Syrian Human Rights Network has been a key source of information and they are to be commended for their dedication and bravery.

It soon became apparent that these organizations were at times working at cross purposes or were unaware of the work of other groups.  Data was being collected in multiple systems unknown to the other.  In the early days of all this, the Syrian resistance struggled, and still struggles, with a viable organizational structure from which to govern.  This hampered human rights organizations who attempted to develop methodologies to assist the resistance in developing a justice mechanism should the conflict end favorably for them.  Coordination became essential.

Over time the major organizations came together and meet twice a month to brief one another on their work, discuss areas of mutual support, and highlight upcoming training, conferences, and meetings.  The Syrian Accountability Project of which I founded and now chair, has become an umbrella organization in which all of these efforts are coordinated, pending perhaps the formal creation of a single data entry point.

Not only has an enormous amount of raw open source data and information been collected, the Syrian Accountability Project has taken that data and built a framework by which President Assad and his henchmen along with members of the opposition can be prosecuted openly and fairly either internationally, regionally, or domestically.  Now into its third phase the project has mapped the entire civil war, developed a crime base matrix which catalogs most of the incidents chronologically and highlights the violations of the Rome Statute, the Geneva Conventions, as well as domestic Syrian criminal law.  There even have been indictments drafted as templates for a future international or domestic prosecutor to consider.  We have given the first two phases to the Prosecutor of the ICC, the United Nations, the US Department of State, and the Syrian resistance leadership.  The methodology above has worked before as it was that methodology that I developed against a sitting head of state, Charles Taylor, President of Liberia back in 2003.

There are five possibilities for a justice mechanism in Syria.  I will take them one at a time and review their strengths and weaknesses.  I will then, Mr. Chairman, give you my recommendation and then take questions.

  1. The first mechanism, the International Criminal Court.  As the world’s permanent international tribunal the so-called ICC was set up in Rome in the late 1990’s to prosecute violations of the gravest of crimes.  Under the principle of complementarity member states are encouraged to prosecute their own, the ICC being a court of last resort or if and when that member state is unwilling or unable to prosecute.  The track record over the first decade of the ICC is spotty and questionable at best.  It lacks the capability and the political and diplomatic sophistication to handle such a mandate.  Coupled with the challenge of gaining jurisdiction over the atrocities the reality is that the ICC is not just up to the task.  It can barely handle its current caseload and investigations.
  2. A second option, an adhoc court created by the United Nations.  There have been two adhoc tribunals, one for the Balkans the other for Rwanda.  Each approaching their second decade, these tribunals have brought some justice and accountability to the victims of those atrocities, but at a huge financial cost.  Inherently inefficient and hampered by unrealistic mandates, location, and the byzantine personnel rules of the United Nations, adhocs are creatures of the past, politically unacceptable as a viable justice mechanism and model for future prosecutions.  As an aside, the creation of such a mechanism would require UN Security Council approval under Chapter 7 of the UN Charter and that is unlikely given the position of Russia on Syria. In the end Russia or even China would veto any resolution creating such an adhoc tribunal.
  3. A third option for justice is a regional court.  A possible solution might be a regional court, a hybrid, fashioned along the lines of the Special Court for Sierra Leone where I was its founding Chief Prosecutor.  Located at or near the scene of the crimes in Syria, such a model would be a visible mechanism for justice to the victims of the Syrian Civil War.  Its mandate would be to prosecute those who bore the greatest responsibility for the war crimes and crimes against humanity perpetrated during that civil war on both sides.  The effort could or would be an option backed by the Arab League with Arab jurists supplemented by Syrian jurists.  It must be noted, Western assistance in any one of these options would be viewed skeptically in my view.  Arabs trying Arabs, Muslims trying Muslims or Syrians trying Syrians is the preferred option. It must be noted, this tribunal would require some form of international sanction in the form of a Security Council resolution.
  4. The fourth option is an internationalized domestic court.  Similar to a hybrid regional court, an internationalized domestic court would be a Syrian chamber set up exclusively within the Syrian criminal system and supported by international personnel where needed.  Again it would be mainly Arab personnel.  This court might not need international sanction, but only region sanction.
  5. And finally, a domestic court system.  This is the preferred option.  Let the Syrian people try those who committed violations of Syrian law.  They do have the capacity to do this if given the leeway and time to settle into a sustainable piece.  Justice and accountability are important, but first Syria needs to transition into a sustainable peace before viable accountability can be achieved, but I must reiterate this can be done.

Having been in this business of facing down impunity and tyranny for almost 40 years, and having taken down a sitting head of state under the rule of law it is my considered opinion that an extraordinary chamber within the Syrian domestic court system is what the international community must support.  Again, let the Syrians try Syrians under Syrian law for what Syrians have done to each other.  We must ask ourselves, is the justice we seek the justice they want.  Modern international criminal law is essentially western justice, a justice that does not take into account unique and important cultural and historical dynamics that only Syrian law can deliver.  The other alternatives carry the weight discussed above and could be viable but are overwhelmed by the practical, political, and diplomatic hurdles each presents.

At the end of the day it is for and about the victims.  The Syrian people want vengeance, retribution, and justice.  We have to consider this and note and respect their views.  If they, the people of Syria, the victims, feel justice was not served than getting them to resort to the rule of law in the future rather than the rule of the gun will be difficult and the efforts of this committee, the US, the international community writ large will have been to no avail.

I thank the Chairman for this time and stand ready for your questions.

  • For the full text plus appendices, click here.
  • For the other testimony and video from the Oct. 30, 2013 hearing, click here.