Achieving Justice for Syria is Not as Hopeless as it Seems

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Adolfo Lujan/Flickr

Last week, Ratko Mladić, former Bosnian Serb army commander, was found guilty of genocide and war crimes by the International Criminal Tribunal for the former Yugoslavia and sentenced to life in prison for his role in the Srebrenica massacre. More than 20 years after the Bosnian war, justice for its victims is still being served.

The Mladic verdict comes at a time when human rights groups like Human Rights Watch and Amnesty International are warning that Bashar Al-Assad’s government, the Islamic State and opposing non-state armed groups are committing war crimes against the Syrian population, including torture, rape, starvation and the use of chemical weapons against civilians.

With the Syrian government allegedly implicated in these atrocities, prosecution of war criminals at a domestic level seems unlikely. That’s why concerted international action is needed to hold perpetrators to account. But what are the options for justice in Syria? And will Syrian victims—like their Bosnian counterparts—have to wait decades?

At first glance, the U.N. seems like the ideal body for investigating Syria’s war crimes. In 1998, it established the International Criminal Court (ICC) to prosecute the most serious international crimes. But in the case of Syria, the U.N. is proving to be one of the biggest impediments to justice. For the ICC to investigate in Syria—which is not a member state of the ICC—it requires a Security Council referral. Russia and China’s numerous vetoes have diminished any hope that the Court could help deliver justice to the thousands of victims of the Syrian war. Not only does Putin support the Assad regime, but his country’s involvement in the conflict could implicate Russia should the ICC investigate. Human rights organizations are already urging the U.N. to hold Russia accountable for its involvement in possible war crimes in Syria.

Carla del Ponte, a prosecutor on the U.N. panel on Syria who previously sat on the tribunals that investigated war crimes in Rwanda and Yugoslavia, recently resigned because she’s lost faith in the ICC’s ability to bring criminals to account: “I give up,” she said. “The states in the Security Council don’t want justice.”

Though an ICC prosecution is unlikely, many nongovernmental organizations (NGOs) are gathering evidence of war crimes committed by all sides of the Syrian conflict. Organizations like the Syria Justice and Accountability Center (SJAC) were set up for the sole purpose of documenting these atrocities. As a result, the Syrian conflict is probably the most documented conflict in history. The U.N. General Assembly has also established a mechanism to pool and preserve evidence collected by NGOs.

These efforts indicate that faith in justice has not yet been lost. But how can simply gathering evidence advance accountability in Syria?

Individual countries including Germany, Sweden and France are using this evidence to prosecute Syrian war criminals nationally under the principle of universal jurisdiction. Germany is in a unique position to prosecute, given that it’s home to Syrian refugees who have been victims of war crimes and can provide valuable information. In fact, Germany has already issued arrest warrants for war criminals: In May, officials in Düsseldorf arrested a man who was recognized by a refugee as a militant leader and war criminal. He’s now facing a life sentence.

While such cases indicate progress, prosecutions by individual countries are limited and mostly target low-level members of non-state armed groups, rather than high-level perpetrators and leaders. But accountability for those who give orders to commit atrocities is both enshrined in international law and critical to achieving justice. It’s the same principle used to prosecute leaders of Nazi Germany after World War II, and it’s vital for an investigation into Assad’s involvement in atrocities.

In the absence of an ICC investigation, Syria needs an ad hoc tribunal like the one set up for the former Yugoslavia. Unlike the ICC, which investigates all parties involved in a conflict, ad hoc tribunals can have very specific mandates. The Special Tribunal for Lebanon, for example, was set up to investigate a terrorist crime—the murder of former Lebanese Prime Minister Rafiq Hariri. Russia might be more likely to agree to an investigation that’s limited to a particular group, such as ISIS. Evidently, the result of such a narrow mandate would result in one-sided justice, leaving Assad’s and Russia’s involvement unexplored. Still, an ad hoc tribunal may be the best way to start while the Assad regime remains in power.

If the Assad regime is overthrown, national prosecutions could be an option, as could the establishment of an ad hoc tribunal that investigates all parties. There are ways to set up an international criminal tribunal without Russia’s consent. The special courts for Cambodia and Sierra Leone provide a possible model: They were not set up through a United Nationals Security Council resolution, but by the national governments with assistance from the U.N. If a similar court is established in Syria, evidence implicating war criminals will already be in place, thanks to the efforts of various NGOs.

Achieving justice for victims of the Syrian conflict won’t be easy, but it’s not as hopeless as it seems. With the defeat of ISIS in Syria drawing near, national prosecutions underway, and nongovernmental groups gathering evidence, it’s possible that those who have committed atrocities will soon be held accountable.

Let’s just hope that Syrian victims won’t have to wait 20 years for justice.

 


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