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Syria, J’Accuse! Syrian State Responsibility for War Crimes

So far, achieving any measure of accountability for the grave international crimes being committed in Syria has been elusive, as I’ve outlined before. A draft Security Council resolution that would have referred the situation in Syria to the International Criminal Court (ICC) failed following a rare double veto by Russia and China. The ICC Prosecutor, Fatou Bensouda, has determined that, at this point in time, there are insufficient allegations against citizens and subjects of ICC member states to move forward with a preliminary examination or investigation under principles of nationality jurisdiction. Efforts to establish a hybrid, regional, or ad hoc tribunal have stalled despite growing international support for the concept. Although a few Syrian perpetrators are being investigated and prosecuted wherever they have been found around the globe — particularly in Europe due in part to refugee flows there — these domestic criminal cases are a drop in the proverbial bucket.

All of these possibilities involve individual criminal responsibility. The concept of state responsibility presents another route to accountability. There are several options for achieving state responsibility, some of which have to date been under-explored. This post will outline these options and then discuss a recent case filed in the United States against Syria on behalf of a US citizen, journalist Marie Colvin, who was killed in an attack on a media center in the city of Homs in the early days of the war.

Options for State Responsibility

Human Rights Bodies. The first, and arguably least robust, option for achieving state responsibility involves proceedings before the various human rights treaty and multilateral bodies, such as the Human Rights Council in Geneva. Syria has ratified a number of human rights treaties, some of which allow for victims to assert individual claims against states parties before a treaty body so long as the state has consented to such procedures. The Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), for example, envisions an individual complaint procedure before the Committee Against Torture. This procedure is unavailing, however, because Syria has not consented to it. As a result, the CAT Committee can only comment upon reports on treaty compliance received by Syria and non-governmental organizations (so-called “shadow reports”). The Committee’s last set of Concluding Observations devoted to Syria (2012) reveal Syria’s utter flouting of the CAT.

The International Court of Justice. The second option involves claims before the International Court of Justice (ICJ) in The Hague. The ICJ has no criminal jurisdiction, but it can entertain proceedings between sovereign states (“contentious cases”) and exercise a form of advisory jurisdiction. It is rare for states to bring suit against other states before the ICJ absent compelling state interests. Indeed, one of the first efforts to invoke the ICJ in the human rights context involved the ultimately unsuccessful campaign to identify a state willing to bring suit against Cambodia under the Convention on the Prevention and Punishment of the Crime of Genocide, which at Article 9 envisions ICJ jurisdiction over suits arising out of the “interpretation, application or fulfilment” of the Convention.

Although the ICJ has not historically been a forum for states to challenge the human rights practices of other states, this may be changing. For example, the proceedings brought by Belgium against Senegal under the CAT — which challenged Senegal’s failure to prosecute or extradite former Chadian dictator Hissène Habré who was present on its territory — ultimately helped to galvanize the establishment of the Extraordinary African Chambers, which recently sentenced Habré to life in prison. In its 2012 judgment, the ICJ ruled that all states parties have a common interest in ensuring compliance with human rights treaties; as such, all states parties have standing to enforce these obligations erga omnes partes.

The ICJ can also exercise a form of advisory jurisdiction, enabling it to rule on international law questions presented to it, including the legal consequences of state action. If no state is willing to institute contentious proceedings against Syria before the ICJ, the General Assembly could request an advisory opinion on state responsibility for Syria’s breaches of international law. The General Assembly made just such a request in 2003 seeking a determination of the legal consequences of Israel’s construction of a security wall in Palestine occupied territory.

Syria is in radical breach of many of its human rights obligations; as such, any other state party to those treaties could institute proceedings against Syria before the ICJ. It remains to be seen if any state will be willing to take such a stand to challenge the Assad regime’s actions in prosecuting the war.

National Courts. Finally, national courts can under certain circumstances adjudicate claims against sovereign entities, although such domestic jurisdiction is circumscribed by principles of foreign sovereign immunity, as discussed in my recent posts on Judge Merrick Garland’s Foreign Sovereign Immunities Act (FSIA) jurisprudence here and here.

Colvin v. Syria. As these previous posts discuss, foreign sovereign immunity is governed in the United States by the FSIA, which offers the sole basis to assert jurisdiction over foreign sovereigns in US courts. Last weekend, the Center for Justice & Accountability (CJA), a San Francisco-based human rights law firm with which I am affiliated, and the global law firm of Shearman & Sterling filed suit against Syria under the FSIA on behalf of the family of the veteran war correspondent, Marie Colvin. Colvin was killed during the siege of Homs — an opposition stronghold — on February 22, 2012, in an artillery attack on the Baba Amr Media Center.

CJA’s suit is proceeding under the state sponsor of terrorism exception to state immunity set forth in the FSIA. That provision reads:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

The suit can go forward because Syria remains one of three states designated by the US government as state sponsors of terrorism. (The other two are Iran and Sudan.)

CJA’s suit has generated intense press coverage (e.g., NBC News, The Washington Post, and The New York Times). The lawsuit has clearly touched a nerve in light of the pervasive quest for justice for the horrific events in Syria. Most moving is the interview with journalist Rami Jarrah on the impact of Marie Colvin’s work in exposing the crimes of the Assad regime. Not surprisingly, Syria has denied the allegations through its Minister of Information Ramez Turgeman.

The plaintiffs seek to hold Syria responsible for the extrajudicial killing of Colvin, which will not require proof that an armed conflict existed in Homs at the time of the attack. The complaint alleges that the government of Bashar al-Assad was using informants and signals intercepts to track Syrian and foreign journalists publishing stories that were critical of the regime or exposing the commission of war crimes by state actors. The plaintiffs further allege that the Syrian regime deliberately targeted the media center in Homs and assassinated Marie Colvin because her broadcasts were calling the world’s attention to the deliberate and indiscriminate attacks against civilians in Homs. Indeed, the night before she was killed, Colvin reported via a portable satellite dish that

There are rockets, shells, tank shells, antiaircraft being fired in parallel lines into the city …. The Syrian Army is simply shelling a city of cold, starving civilians.

The complaint alleges that this signal and others were intercepted by the Assad regime, enabling it to target the makeshift media center. The complaint further alleges that:

The rocket attack was the object of a conspiracy formed by senior members of the regime of Syrian President Bashar al-Assad (the “Assad regime”) to surveil, target, and ultimately kill civilian journalists in order to silence local and international media as part of its effort to crush political opposition.

CJA’s complaint, which was filed in the District Court of the District of Columbia, draws upon information from insiders, informants, and leaked government documents, some of which have been obtained by the Commission on International Justice & Accountability (CIJA), featured recently in The New Yorker (an interview with the writer of that story is here). One such document, attached as Exhibit A to the complaint and dated Aug. 6, 2011, instructed the security committees to launch joint military and intelligence campaigns against “those who tarnish the image of Syria in foreign media and international organizations,” and others.

The complaint includes a long list of attacks on journalists who were also reporting on the regime’s repression of peaceful demonstrations and responsibility for civilian casualties. Indeed, Colvin was killed along with French freelance photographer Rémi Ochlik. His colleague Edith Bouvier was also injured in the attack and was trapped in Homs for over a week in desperate need of medical care. France’s War Crimes Unit in the Tribunal de Grande Instance de Paris has opened an inquest into whether war crimes (murder and attempted murder) were committed in the Baba Amr attack. France has declassified files in support of the investigation. Because Colvin is a US citizen, the Justice Department’s Human Rights & Special Prosecutions Unit could also seek to prosecute individual perpetrators and their co-conspirators under the US War Crimes Act as discussed in further detail here and here. (For background, I’ve covered the war crime of attacking journalists here and here.)

In terms of legal technicalities, venue is proper in the District of Columbia under 28 USC § 1391(f)(4). The case will proceed before Judge Amy Berman Jackson. Under the FSIA (§ 1608), service of process can be effectuated by mail on Foreign Minister Walid al-Mualem in Damascus, or through diplomatic channels (the Czech Republic is the United States’ Protecting Power in the absence of a US embassy in Syria). Personal jurisdiction over the sovereign state is achieved by service of process. The plaintiffs have also offered to arbitrate the claims before the Permanent Court of Arbitration (PCA) in The Hague. If Syria accepts, which seems unlikely, international arbitration would present a novel form of adjudicating responsibility for the commission of international crimes. The only recent precedents are state-to-state arbitrations and include the arbitration between Eritrea and Ethiopia that settled war-related claims between the two countries. The PCA established that panel (a second panel dealt with a boundary dispute) as part of the 2000 peace agreement between the two countries. After years of litigation, the arbitral panel completed its work in 2009, awarding almost equivalent damages to the two countries.

This is the second such suit under the FSIA arising out of the war in Syria (although Syria has been sued in the past under the FSIA for terrorism (see, e.g., Wyatt v. Syria)). The first FSIA case involving the current hostilities in Syria was filed by the family of journalist Steven Sotloff, who was captured in 2013 by ISIL and later beheaded. In the past, Syria has not defended suits against it, resulting in several judgments against it.

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About the Author

is the Leah Kaplan Visiting Professor of Human Rights at Stanford Law School and a Professor of Law at Santa Clara University School of Law. She was formerly the Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own and not those of the State Department. Follow her on Twitter (@BethVanSchaack).