In May 2014 an attempt to refer the situation in Syria to the International Criminal Court (ICC) was vetoed by Russia and China. Since then, war crimes and crimes against humanity have escalated.
Civilians have been bombarded by chemical weapons, cluster munitions, incendiary devices and barrel bombs. Cities have been starved in medieval sieges, doctors and hospitals systematically attacked, food convoys obliterated or obstructed, and courageous rescuers like the Syrian ‘White Helmets’ deliberately killed. Thousands have been tortured or enslaved.
As one Free Syrian Army fighter said, inside Syria ‘it is like the apocalypse, the end of days’. It also feels like the last gasp of international humanitarian law and a return to a more primitive law of unbridled necessity. Belligerents act with little restraint. Other states arm, support and shield them. Compliance mechanisms are weak and impunity prevails.
International criminal justice is threatened not only by Security Council vetoes but by the failure of key states to become parties to the ICC, including Syria, Iraq, Russia, Iran and the United States. As such, the Court cannot ordinarily exercise jurisdiction over crimes committed in their territories or by their nationals.
The ICC can still exercise jurisdiction over foreign fighters who are nationals of parties to the ICC Statute. However, the ICC has indicated that such persons are not the ‘most responsible’ for crimes and therefore not the focus of its work.
An ad hoc international tribunal for Syria and/or Iraq, as for the former Yugoslavia and Rwanda in the 1990s, is also unlikely to be created if the Security Council remains divided.
At the national level, there is little hope in Syria, which is unable or unwilling to genuinely prosecute perpetrators, including its own forces or its Russian and Hezbollah allies. The regime has also used its legal system to persecute, torture and execute its opponents.
Human rights remedies also face major hurdles. Victims of airstrikes in Syria recently took Russia to the European Court of Human Rights. But it is uncertain whether Russia’s human rights obligations would apply to air strikes on foreign battle fields, unless these constitute ‘effective control’ over persons or territory.
However grim the situation, we cannot let these conflicts bury the ideals of justice and restraint in war. Even in the heat of war, much more can be done to ensure accountability.
First, at the national level, states must prosecute their own returning ‘foreign fighters’. States should prioritize prosecutions rather than denying their nationals the right to return home. Cancelling passports or stripping citizenship may simply enable ‘terrorists’ to keep killing people in foreign countries, thus shifting the burden onto other states.
Secondly, given their proximity to the conflicts, perpetrators and witnesses, national prosecutions will be especially important in states such as Iraq, Jordan, Turkey and Lebanon. The key challenges will be to avoid partisan or sectarian ‘victors’ justice’, unfair trials and the death penalty. International technical assistance could be provided for investigations, evidence gathering, witness protection, detention monitoring and trials.
Thirdly, there remains the possibility of a hybrid tribunal applying domestic law, like those in Cambodia, Lebanon, Timor Leste, Kosovo and Sierra Leone. While these are usually established with the UN, a novel alternative would be for coalitions of states to create a special court in a willing country. All states have a right to exercise universal jurisdiction over international crimes wherever committed, so UN authorization is unnecessary.
This approach would face inevitable challenges in securing evidence, witnesses and custody of offenders. Even the Special Tribunal for Lebanon, backed by the UN, has been unable to apprehend any defendants and has problematically pursued trials in absentia. A national body would have no extraterritorial enforcement powers, absent Security Council backing. Foreign state perpetrators, including Syria, Iraq, Russia and Iran, would probably refuse to cooperate – although selective prosecutions are better than none.
A single state would also struggle to bear the resource and security burdens of prosecuting and imprisoning the major perpetrators, making international assistance all the more pressing. International justice is often unfairly criticized as too expensive, but it is cheap compared to the vast costs of military operations. Fair trials must nonetheless be practical and expeditious, and avoid the long delays that have dogged most international tribunals.
Fourthly, all parties to the conflicts must genuinely punish their own atrocities, and not focus selectively on those of a common enemy like Islamic State in Iraq and Syria (ISIS). Civil society must also be supported to engage in accountability processes.
Fifthly, another avenue for justice during conflict may be certain non-state armed groups. While there are legitimate concerns about their capacity to provide fair trials and humane detention, they should not be ruled out as agents of accountability (including for their own violations), particularly if given assistance.
Whatever routes to justice are pursued, it may be tempting to severely punish ‘terrorists’ and war criminals as beyond deterrence or redemption. However, deradicalization and rehabilitation should not be dismissed in the rush to punishment. Fighters who have not committed crimes should be given amnesties and be demobilized and reintegrated, to prevent violence recurring.
Finally, regardless where and when trials may take place, right now the international community needs to create an enabling environment for future prosecutions to succeed. As ISIS is pushed back, more resources and expertise could be devoted to gathering primary evidence while it is forensically fresh on the ground and in the minds of living witnesses, including refugees.
This could be channelled through existing formal monitoring processes, such as the UN Human Rights Council’s International Commission of Inquiry on Syria, or through more informal initiatives such as the Western-funded Commission for International Justice and Accountability, the Syria Justice and Accountability Centre, Amnesty International, Human Rights Watch, or new efforts. All states could also share more intelligence with investigators.
The world is facing an acute crisis of accountability in Syria and Iraq. This is having ripple effects and enabling atrocities in other conflicts like Yemen. It is threatening the hard-won global normative consensus on restraint in war, so painstakingly negotiated over two centuries. A renewed effort is required to reinvigorate humanity in war, and to ensure that the idea of justice in war does not disappear.
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