Beth Van Schaack’s recent posts (see here, here, and here) on the proposed Syria hybrid tribunal prompted an astute response from Rianne Letschert:

Rianne raises a valid point. Obviously, the first priority in Syria should be ending the atrocities and the conflict in which they have become endemic. But this begs the question of how? So far, three years worth of efforts on this front—comprising political negotiations, the fervent condemnations of atrocities, the careful documentation of crimes, repeated calls for accountability, and even the threat of a military intervention—have all failed to bring an end to the abject suffering of the civilian population in Syria.

What has not yet been tried is actual accountability: the taking of concrete steps toward the prosecution of individuals responsible for committing, ordering, or being complicit in war crimes and crimes against humanity.

What is to be gained by taking action now on accountability, even while the civil war continues and the Syrian government is unlikely to cooperate with any prosecutorial effort? We would submit that actions that the international community take now to signal the credible risk of future prosecutions can help to:

  1. demonstrate and solidify international resolve to ultimately hold perpetrators accountable;
  2. promote deterrence among would-be perpetrators;
  3. encourage defections and desertions;
  4. inspire overt and covert acts of resistance to unlawful orders;
  5. galvanize concrete multilateral support for prosecutions and other accountability mechanisms;
  6. increase domestic capacity to hold fair and effective trials of perpetrators; and
  7. help build the foundation for future rule-of-law reform in Syria.

To be sure, the prospect of deterrence remains speculative. Even on the domestic front, it is difficult to prove empirically that the prosecution of crimes exerts a deterrent effect on potential criminals. But as Ryan Goodman responded to Rianne:

The United Nations special procedures mandate holders have made a similar point in a collective press release: the failure of the Security Council to act conveys equivocation in the face of serious international crimes rather than international resolve and

“leaves the door wide open for new atrocities in the ongoing conflict.”

To date, the international community has consistently conveyed robust accountability language in its public messaging. And, there has been strong multilateral support for a whole range of documentation initiatives such as the Syria Justice and Accountability Centre, the Syrian Commission on Justice & Accountability, and the U.N. Commission of Inquiry. Taking concrete and public steps now toward actual prosecutions—e.g., gathering a core group of committed states, writing a Statute and other constitutive documents for the new court, identifying Syrian and international personnel, securing funding commitments, ramping up evidence gathering, compiling dossiers on individual perpetrators, issuing indictments, and holding preliminary hearings—would significantly build upon these efforts.

The establishment of a dedicated tribunal—even if the full panoply of perpetrators cannot be apprehended until after a transition—would signal the international community’s resolve to ensure accountability. It is a tangible means for moving forward that Russia and China cannot block and that does not depend on the Syrian government’s acquiescence. Encouraging the substantial involvement of members of the Arab League would signal regional solidarity against the actions of the current Syrian regime and other violent non-state actors. It may also help engender support for international criminal law in a region where norms of accountability remain fledgling.

In addition, moving forward on this hybrid initiative would begin a process of building Syrian domestic capacity to hold fair and effective trials. Elements of the Syrian legal community could be actively engaged in this process in ways that would not be possible had the Security Council successfully referred the situation to the ICC.

The key point is to start a different discussion on the atrocities in Syria and to bring about a range of new incentives for the parties to change their behavior. This initiative can support other efforts, for example, by raising the question whether interference with humanitarian aid is a war crime and whether helping to cover up chemical attacks is a form of complicity. Where conflicts are entrenched and grievances are deep-seated, criminal tribunals are no panacea and, in some cases, may complicate efforts to have perpetrators step down from power. In Syria, the case for a criminal tribunal does not suffer from those tradeoffs. The sooner the process for establishing a court gets underway the more options for stopping Assad’s atrocities will be available.