As we have discussed in a prior post and in the press, the international community must think creatively about how to build an accountability mechanism for Syria that does not—at least in the immediate term—involve the Security Council given the recent Russian/Chinese double veto of the French resolution to refer the matter to the International Criminal Court (ICC).
The Hybrid Model
In anticipation of paralysis at the Security Council, one option that has been under consideration on multiple fronts is the creation of a hybrid tribunal somewhere in the region. A number of such tribunals have been created in the past to address the commission of international crimes in Sierra Leone, East Timor, Cambodia, Bosnia-Herzegovina, Kosovo, and Lebanon. In all these cases, however, the tribunal was created with the consent of the target state, usually manifested in an agreement with the United Nations. This is obviously not an option given the substantial involvement of current Syrian regime in the very crimes that are of greatest concern. No credible political opposition has yet cohered in Syria that could offer an alternative source of consent, although members of the opposition have announced the formation of a Commission on Transitional Justice to consider these issues. In any case, the opposition itself is also responsible for abuses, and so its expressed commitment to accountability for crimes committed during the civil war may wane when push comes to shove.
Establishing the Tribunal
In the absence of Syrian consent, there are several routes that could be taken to establish such a tribunal.
1. Specialized Chambers in a Domestic Judicial System Established by Domestic Law One involves the creation of specialized chambers within the courts of a willing host state—likely one in the region—that would incorporate international staff (judges, prosecutors, defense counsel, and staff) and be empowered by domestic law to prosecute the relevant international crimes. The tribunal itself would be largely domestic, with the “international” element coming in the form of personnel, funding, expertise, evidentiary assistance, and applicable law. Models include
- the mixed war crimes chambers in Bosnia-Herzegovina (formed under the auspices of the High Representative in BiH, an position created through the implementation of the Dayton Peace Agreement) and
- the special panels in Kosovo (formed under the European Union Rule of Law Mission (EULEX)).
Both of these institutions prosecuted lower level-perpetrators not pursued by the International Criminal Tribunal for the Former Yugoslavia (ICTY). This model is also under consideration for the Democratic Republic of Congo, although the necessary legislation remains stalled in Parliament. The Iraqi Special Tribunal offers another example of a special court created at the domestic level but with international involvement. The relevant basis of domestic jurisdiction will be the subject of a subsequent post, but options include: universal, protective, territorial, and nationality jurisdictional principles.
2. An Ad Hoc Tribunal Established by International Agreement
A second option involves the conclusion of an agreement by a group of states (e.g., Arab League member states and other pro-accountability states) to establish a tribunal with the necessary jurisdiction. The underlying legal premise is that these types of crimes are of concern to all members of the international community. Indeed, many multilateral treaties (and arguably customary international law) permit, and in some cases mandate, individual states to prosecute international crimes in their national courts. None of these treaties requires Syrian government consent to any domestic prosecution. As such, a group of states could join together to do collectively what any one state could do individually. The Nuremberg Tribunal owes its provenance to an agreement (the London Agreement of August 8, 1945) between states to prosecute WWII crimes. Germany did not consent to these trials, although it was, at the time, under occupation with its sovereignty being held essentially in trust by the occupying powers that collectively created the Tribunal. Any agreement to create such a hybrid institution for Syria could be open to any number of parties committed to contributing to the establishment, funding, and staffing of the institution.
A precedent for this second route is the tribunal established to prosecute Hissène Habré for crimes committed while he was President of Chad. This tribunal owes its provenance to a 2012 agreement between Senegal, where Habré had sought safe haven, and the African Union to establish an “extraordinary African chambers” within Senegal’s judiciary. This body, which just began to operate, comprises a mix of Senegalese and international judges. Regional actors have assumed the primary responsibility for ensuring accountability, although with international participation, funding, and expertise. The United States, the European Union and other states have provided funding. It operates, however, with the acquiescence of Chad.
Another idiosyncratic example is the Lockerbie tribunal, which was established under Scottish law at a decommissioned U.S. Air Force base in The Netherlands to prosecute individuals accused of participating in the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland. The trial was premised on agreements between the United Kingdom and Libya (which insisted upon a “neutral” venue before it would consider extraditing the main suspects) and between the Netherlands and the U.K. The Secretary General played an important role brokering this complex arrangement, and it came about under the shadow of multiple Security Council resolutions.
3. The General Assembly
Finally, the General Assembly could conceivably recommend the creation of a tribunal without Syrian consent, although as Derek Jinks noted in an early post, it is difficult to envision UNGA doing anything coercive given the constraints on its action in the U.N. Charter. The Assembly could, however, “bless” any domestic or multilateral accountability initiative to give it additional multilateral legitimacy. It could also make recommendations regarding jurisdiction, funding, and other logistics.
Complementarity & The ICC
It should be noted that action on this proposal would not preclude the possibility of parallel judicial processes in other venues, such as domestic courts under a range of jurisdictional principles, or even before the ICC, if Council dynamics change or if a future Syrian regime joins the Court or enters into an ad hoc declaration accepting retrospective jurisdiction. The ICC was designed to be complementary to national prosecutions, although it should be noted that the complementarity provisions of the ICC Statute do not envision sharing jurisdiction with another international or regional tribunal.
Syrian Consent
In its calls for accountability for the crimes committed in Syria, the international community has always insisted that the Syrian people play a leading role in determining issues of accountability and transitional justice. Concerns about the lack of Syrian consent could potentially be mitigated with any of these hybrid models.
For one, any hybrid tribunal would include Syrian jurists and staff. Although little progress on this proposal has been made on the political front, members of civil society have been actively considering issues of transitional justice and accountability. Many Syrian jurists and NGOs (such as No Peace without Justice, The Day After, the Human Rights Data Analysis Group, and the Syrian Justice & Accountability Centre) have participated in dozens of conferences and trainings at which this hybrid tribunal option, and other proposals, have been discussed and debated. Current and former chief prosecutors have endorsed a draft statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes, which offers a place to start from a substantive law perspective.
In addition, any the legislation or agreement establishing the proposed tribunal could include provisions transferring “ownership” of the process to the Syrian people and a new Syrian regime post-transition. Such a turnkey approach may be particularly helpful in the transitional period when a new government may be ill-positioned to address the commission of international crimes while rule of law institutions may be less than fully functional. Other hybrid tribunals have operated according to sunset clauses whereby the international personnel gradually transition out once full domestic capacity has been established.
Funding
Like other tribunals, the proposal would require a significant financial commitment, likely borne by the international community or regional players as has been the case in the past. In other situations, such as the Special Court for Sierra Leone and the Khmer Rouge Tribunal, donor fatigue has threatened the sustainability of these institutions and required considerable outreach to ensure adequate funding. To the extent that a host state is willing to take on the institutional costs, this will lessen the amount of external fundraising that will be necessary. Any agreement establishing such a tribunal should include concrete funding commitments and other guarantees of support (such as seconded personnel, etc.)