A Step towards Justice: ten years later

With the departure of Assad, comprehensive justice for Syrians finally appeared to be on the horizon. Renewed clashes in the first weeks of March only serve to underline the importance of holding perpetrators accountable without which cycles of violence are likely to continue. Nearly ten years ago, SJAC and Ceasefire Centre for Civilian Rights’ published a report on a variety of accountability options for crimes committed in Syria (the “2015 report”). Amidst significant political changes in the country, many of the avenues envisaged in 2015 remain potential paths for justice, and other prominent mechanisms that seemed inoperable until now are emerging as realistic prospects. The report remains a useful resource for those considering transitional justice for Syria, albeit with the following provisos and updates based upon the most recent events. Some new opportunities could include self-referral to the ICC, the creation of a hybrid tribunal in Syria, and the continued exercise of universal jurisdiction in European states. 

The International Criminal Court 

The International Criminal Court (ICC) was created to prosecute senior leaders and military officials responsible for the most serious international crimes. As an international court it circumvents head of state immunity and also defines international crimes, giving potential violators advance notice which is a requirement of human rights law. Contrary to common belief, it is not a UN entity (though it has relationships with them) and it has no formal connection to the International Independent and Impartial Mechanism (IIIM) which was created by the UN General Assembly to collect evidence of international crimes in Syria.  

In fact, the ICC could be an appropriate venue to prosecute Bashar Al-Assad and his senior leadership. However, the ICC still does not have jurisdiction to investigate crimes that occurred in Syria because Syria is not a state party to the Rome Statute. Art. 13 (b) of the Rome Statute gives the United Nations Security Council (UNSC) the power to refer the situation to the ICC, but an attempt to refer the situation in 2014 was vetoed by Russia. With a new government in Damascus, Syria could ratify or accede to the Rome Statute. To do so, Syria would have to make a declaration accepting the jurisdiction of the Court allowing the application of the Rome Statute from the start of the war. This could give the new government in Damascus a measure of legitimacy - as Ukraine has done in its own context. Cooperation with the ICC could prove useful in supporting domestic justice processes in Syria, notably through capacity-building. Primary jurisdiction however would remain with Syria since the ICC’s role is meant to be complementary to state institutions and it is only permitted to intercede when a state is unable or unwilling to bring to provide meaningful justice. 

Even if the ICC investigates the most senior leaders responsible for Assad era crimes, it would leave a wide range of prosecutorial opportunities to the domestic authorities for lower-level criminals. Although not representative of a formal commitment to international cooperation or justice, talks were held between the ICC Chief Prosecutor, Karim Khan, and Ahmed Al-Sharaa in January.  

 A Syrian hybrid Tribunal 

Hybrid tribunals are courts that combine elements of international and domestic systems and have been created in many contexts such as Sierra Leone, Cambodia and Lebanon. In Syria, this could mean a combination of Syrian and international judges and prosecutors. It could also mean incorporation of a new law providing jurisdiction over international crimes and utilizing Syrian criminal procedure. It would likely require the Syrian government and the UN General Assembly to negotiate a treaty. Such would only be possible when the Interim Syrian Government is considered to have adequate legitimacy to engage in international affairs and treaty making. Although at the time of writing our original report, states appeared to favor efforts to refer Syria to the ICC, there is renewed interest in the idea of a hybrid tribunal for Syria after the fall of the Assad government. 

In 2013, SJAC convened a group of Syrian lawyers and international experts to discuss the possible form of a Syrian hybrid tribunal. The final result was the broad strokes of a framework that could be used to create such a court. The document left open several important questions such as the number of Syrian and international judges and issues ranging from sources of funding to whether the death penalty would be available as a penalty. Each of these issues could lead to complex and protracted negotiations. That said, the document could serve as a starting point. Before any discussions could begin in earnest, however, Syria must first rebuild the basic structures of a judiciary, including criminal law and procedure. Judges and lawyers will need supplemental training to reform a legal system that has normalized corruption. In this regard, a number of organizations stand ready to provide capacity building including the ICC, the IIIM, and Syrian civil society. 

Universal Jurisdiction 

Criminal prosecutions in foreign national courts under the principle of universal jurisdiction (UJ), remain essential to accountability at least as long as reforms are underway in Syria. Such trials for crimes committed in Syria have been most prominent in Germany, the Netherlands and France. Several factors could lead to an increased number of UJ trials in the near to medium term. When Assad was in power, witnesses were reluctant to testify but they have since been liberated to speak freely. In addition, vast troves of evidence are now available in Syria, including documents preserved in former intelligence facilities. The transitional government in Syria is now in a strong position to facilitate UJ prosecutions by sharing evidence through mutual legal assistance agreements. Many perpetrators from Syria’s former government(s), as well as militias of various affiliations, have fled the country and may rejoin their families in European states. In the absence of judicial institutions that could genuinely afford the minimum requirements of a fair trial in Syria, European jurisdictions will be reluctant to extradite suspects of international crimes, who are present on their territories, back to Syria. As such, consonant with their legal obligations, most European states will continue to prosecute such suspects, especially where they have a strong connection to the case (e.g. where a victim or perpetrator is a national). Together these factors suggest that UJ trials will be more, not less, prominent after the fall of Assad. 

The 2015 report highlighted the need for accountability mechanisms to be sensitive to the post-conflict context and this remains a concern as criminal justice will need to co-exist with other peace processes, including truth and reconciliation or missing persons commissions. After all, transitional justice is inclusive of criminal accountability as well as guarantees of non-recurrence, institutional reforms and constitution drafting, and reparations for victims and survivors.  

Political factors  

The Syrian transition is also taking place in a particularly difficult and unstable international context. Many factors are likely to influence the adoption and functioning of certain mechanisms. In this context, the UNSC is likely to remain blocked, given the Chinese presidency and the Russian veto, as well as a possible loss of American support for a referral to the ICC.  The regional dimension of justice and accountability efforts must be closely monitored, particularly within the Arab League, which could serve as a key forum for providing both political and financial support. Certain states with vested interests in the Syrian conflict, including Saudi Arabia and Turkey, have already signaled their willingness to engage in Syria’s transitional process, potentially shaping the trajectory of post-conflict justice initiatives.  

While the engagement of the international community is essential, the Syrian transition must remain a Syrian-led process to ensure legitimacy and long-term success. Accountability mechanisms are often lengthy and costly processes to establish, but with sufficient international and domestic support, several pathways to justice remain open to Syria.

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