This article was origionally posted on Syria Deeply
By Katarina Montgomery
In the face of Russia and China’s refusal to allow alleged war crimes in Syria to be referred to the International Criminal Court (ICC), one of the court’s former chief prosecutors has called for new ways to bring the perpetrators to justice, including, potentially, a hybrid international court.
Speaking to Syria Deeply, David Crane—the former chief prosecutor for the Sierra Leone war crimes tribunal that indicted former Liberian dictator Charles Taylor—said that Moscow and Beijing’s intransigence on the issue meant the ICC was “no longer a relevant option.” He suggested that a local or internationalized domestic court could be set up outside the UN Security Council in conjunction with the Gulf Cooperation Council or the Arab League.
Crane spoke with Syria Deeply after the head of a UN panel investigating human rights violations in the Syrian conflict said the panel was ready to share secret lists of alleged Syrian war criminals with judicial authorities in countries preparing to prosecute them. Such a move could come back to haunt the court, Crane said.
Normally, it is policy not to name alleged war criminals, but investigators from the UN’s Commission for Inquiry on Syria said there had been an “exponential rise” in atrocities committed and expressed concern about a standstill at the UN Security Council that has reinforced a climate of impunity inside Syria.
The UN has detailed a gruesome array of alleged crimes against humanity and war crimes by the Syrian regime, Islamic State fighters and other armed opposition groups over the course of the Syrian conflict.
Last year was the deadliest yet in Syria's four-year conflict, with over 76,000 killed, including 17,790 children. Notably, the number of barrel bomb casualties—6,479 civilians—has actually increased since a resolution was passed condemning their use. Even the UN Security Council’s notable achievement—compelling Syria to destroy its chemical weapons stockpile—has been undermined by reports that chlorine gas was used in an attack against civilians just last week.
In the face of continued Russian and Chinese opposition to a referral of the Syrian conflict to the ICC for prosecutions, lawyers and academics have been working on alternatives to the ICC in an attempt to find justice in Syria.
Crane was also one of three international lawyers who examined photographs, smuggled out of Syria by a former military police photographer, that war crime prosecutors claim provide direct evidence of the brutal torture of 11,000 detainees by Assad’s security forces from March 2011 to August 2013. The evidence, Crane said at the time, would easily stand up in a court of law, but he noted a lack of political will on the part of the international community to prosecute.
Crane spoke to Syria Deeply about alternatives to the ICC.
Syria Deeply: Amid Russian and Chinese opposition to an ICC referral, what are some of the other way to find justice for crimes against humanity committed in Syria?
Crane: We’ve been working on various alternatives to the ICC for several years. I chaired a panel of 12 leading experts, practitioners and academics charged with coming up with a statutory blueprint for a local, regional and international tribunal or court. At this point, there are four possibilities for a justice mechanism: The first would be a Syrian domestic court that would try individuals for violations of civil law. The second is an internationalized domestic court that uses Syrian criminal law to prosecute, and where international experts assist with prosecution. The third is a regional court that has bilateral or multilateral representation from regional countries. And the fourth option is an international court other than the ICC. I see that Carla del Ponte is calling for an ad hoc tribunal, which is a possibility, but the one that is catching on, as far as reality is concerned, is a hybrid international court.
Syria Deeply: What are some of the obstacles to documenting and gathering information about war crimes? What are some of the difficulties faced in linking the crimes to mid or high-level commanders? Who is involved in this documentation?
Crane: We have a solid case against all of the parties involved in this tragedy: The Syrian regime, the FSA [Free Syrian Army], ISIS, the jihadist groups. The real challenge with these types of situations in the social media age is that there is a tsunami of data coming out of Syria—video, witness testimony, documentary evidence. In my opinion, 98 percent of it is worthless in a court of law because of chain of custody issues, authentication issues, etc. Nonetheless, the documentation in terabytes is useful from a historical and a truth-telling point of view.
Be that as it may, there are several groups, including the Syrian Accountability Project, CIAJ, the Syrian Justice and Accountability Center, that are beginning to work together and have built solid cases against the individuals creating this tragedy. The challenge is not coming up with the case, it’s ensuring that the evidence showing that war crimes and crimes against humanity are being committed is appropriate and authenticated.
Syria Deeply: UN investigators offered on Tuesday to share names from secret lists of alleged Syria war criminals with prosecution authorities in any county preparing cases, to help end the “culture of impunity” in the country and get around the standstill at the UN Security council. Is there a precedent for this? How would it work?
Crane: If I were the chief prosecutor, which I was once, I wouldn’t do it. If I was investigating individuals for crimes, I would keep [the list] closed until I had a solid case, then I would seek an indictment and then announce it publicly, which we did in West Africa. I don’t see any benefit to releasing names. I think it’s a public relations ploy that could come back to haunt the decision later on. There are many challenges related to it, including legal liability in terms of slander and libel, particularly since the individuals haven’t been charged with crimes yet—it’s simply the opinion of the panel, which is saying they have committed war crimes. There is also the practical challenge that these individuals could start covering up for themselves, and evidence related to their case can be destroyed.
Syria Deeply: What are some of the challenges involved in prosecuting this case?
Crane: I’m not saying this is going to be easy, but the international community has done it before and it has the experience and the practical knowledge to do so. However, there are many challenges to be considered such as witness protection, authenticating documentary evidence, state cooperation, capturing and detaining fugitives, etc.
Syria Deeply: Human rights groups and UN envoys have compiled chilling evidence of the war crimes committed inside Syria. In addition, the “Caesar Report” gave direct evidence of the torture of detainees by the Syrian regime. Last year was also the deadliest in the Syrian conflict thus far. How do you fight a culture of impunity? Why are we seeing such significant delays in the prosecution of war crimes?
Crane: We have a solid case against these individuals and can prove it in a court of law. It’s the political will of the international community that is the ultimate hindrance, as well as geopolitical challenges such as the issue of China, Russia, and Iran backing Syria. It will be a political decision if and when we decide to seek justice for the people of Syria. We’ve seen this play out throughout the four years we've been working on this. Right now, there is no stomach, politically, to do something about Syria from a justice point of view.
It’s not possible to get Russia and China on board for an ICC referral, but there are other tribunals that don’t need their approval. For example, a local or internationalized domestic court can be set up outside the Security Council, as well as a regional court like the Gulf Cooperation states or Arab League. China and Russia are not going to back off. At this point, the ICC is no longer a relevant option.
Syria Deeply: A UN report said that ISIS, rebels, and the Syrian regime were responsible for war crimes and crimes against humanity and that all three should be referred to the ICC. To what scale is each individual group guilty of crimes against humanity and war crimes? Is there a precedent for prosecution of extremist groups at that level?
Crane: Sadly, the scale of war crimes and crimes against humanity has increased since I started working on the case at the beginning of March 2011. The conflict has gotten bloodier and more personal the longer it has gone on. At the end of the day, no one is following international law and sadly civilians are suffering greatly because of it. All parties are equally committing international crimes. We’ve never prosecuted a non-state actor like the Islamic State at an international level, but it can be done statutorily—they can be included within groups and individuals committing these crimes.
Syria Deeply: In what ways is the Syria case different from/similar to other war crimes trials/prosecutions you’ve worked on?
Crane: We do have practical experience in prosecuting—it’s just a matter of picking the right type of court, with the right political backing. It’s not dissimilar. But again, we should take to heart that in the past 20 years we have gained the experience to do this, though we have to wait on the will of the international community to do so.
It’s important that we continue to move forward, to build the proper legal case against the parties, to continue to build consensus politically that we need to do something, and not to be deterred by the immediate challenges.
Ten years ago, President Charles Taylor of Liberia would never have thought that he would be held accountable for what he had done in West Africa. Now he sits in a maximum-security prison in northeast England for the rest of his life. Sometimes it takes time, but justice will prevail. It’s important for everyone to understand that we shouldn’t be deterred. We might see a political breakthrough or a geopolitical situation that will allow us to take action.
Katarina is a digital producer at Syria Deeply.
[Photo courtesy of Syria Deeply]