Following on the heels of last week’s chemical weapon attack in Syria, Senators Marco Rubio (R-FL), Ben Cardin (D-MD), Jeanne Shaheen (D-NH), Bob Corker (R-TN), Bob Menendez (D-NJ), and Todd Young (R-IN) have introduced the Syria War Crimes Accountability Act of 2017, which authorizes the United States to provide technical and other forms of assistance to investigations and other credible transitional justice efforts, including a potential hybrid tribunal. (C-Span video is here). In his press release, Sen. Rubio—chair of the Senate Foreign Relations subcommittee on human rights said:
We must bring to justice those responsible for the Syrian regime’s barbaric attacks and repeated use of chemical weapons.
Senator Cardin, ranking member of the Senate Foreign Relations Committee, stated:
The United States must lead the international community in holding Assad accountable for his war crimes and his brutal victimization of the Syrian people over the last six years.
In drafting this proposed legislation, lawmakers interfaced with a range of organizations engaged in documentation and litigation, including the Commission for International Justice & Accountability (CIJA), which is devoted to documenting crimes in Syria & Iraq, and the Center for Justice & Accountability (CJA) in San Francisco, a human rights law firm.
The full text of the bill is available here. Some key elements:
- The proposed legislation recites—and condemns—the range of international law breaches committed in Syria, including Secretary Kerry’s 2016 determination that genocide is being committed (see my coverage here and here).
- The legislation’s findings make reference to the range of individual cases proceeding in domestic courts involving international crimes committed in Syria, which include the U.S. suit under the Foreign Sovereign Immunity Act (FSIA) about which I have written here and other domestic proceedings, covered here and here (foreign fighters).
- The findings also note that the United States has already provided almost $6 billion in humanitarian aid, making it the world’s largest single donor.
- The bill catalogs existing efforts to lay the groundwork for accountability, including the U.N. Commission of Inquiry (COI) established by the Human Rights Council in 2011 and the new International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic (IIIM). (Alex Whiting’s coverage is here and here (Russia’s objections); mine is here).
- The legislation mandates the Secretary of State, working through and with the Office of Global Criminal Justice (GCJ) as well as USAID and the Department of Justice, to submit a report on war crimes, crimes against humanity, and genocide committed by the regime and violent extremist groups and an assessment of programs that are assisting in promoting accountability through documentation and training. The reports are to be submitted to appropriate congressional committees (Senate Foreign Relations & House Committee on Foreign Affairs).
- The legislation also mandates the Secretary of State, working through GCJ and other offices, to complete a study of potential transitional justice mechanisms for Syria, including a hybrid tribunal, with recommendations for U.S. support. This report will also be submitted to the two Appropriations Committees.
- The legislation authorizes the provision of technical and other forms of assistance to those entities that are seeking to
- identify suspected perpetrators of war crimes, crimes against humanity, and genocide;
- collect, document, and protect evidence of crimes and preserve the chain of custody for such evidence;
- conduct criminal investigations;
- build Syria’s investigative and judicial capacities and support prosecutions in the domestic courts of Syria, provided that President Bashar al Assad is no longer in power;
- support investigations by third-party states, as appropriate; or
- protect witnesses that may be helpful to prosecutions or other transitional justice mechanisms.
- The bill would amend the relevant legislation (22 U.S.C. 2708(b)(10)) to direct the State Department’s Rewards for Justice Program to target suspected perpetrators of war crimes, crimes against humanity, and genocide in Syria. The War Crimes Rewards Program (see my coverage here), however, probably only apples to individuals accused by “an international criminal tribunal (including a hybrid or mixed tribunal)” of one of the core crimes. (Although rewards can be paid if the individual is eventually transferred to a domestic court, as facilitated by Rule 11bis of the ICTY/R Statutes). Finally, the legislation directs the U.S. Mission to the U.N. and the State Department to advocate for the annual renewal of the COI by the U.N. Human Rights Council.
Unfortunately, the legislation provides no new funding for this work. And, there is a potentially inadvertent gap that Kevin Jon Heller identifies over at Opinio Juris in terms of attention to crimes committed by rebel groups (as opposed to pro-regime groups).
Prior coverage on options for accountability in Syria can be found here (a catalog of options), here (available bases of jurisdiction), here (hybrid tribunal proposal), and here (arguments for pursuing accountability). My coverage of the legal issues around the use of chemical weapons is here.
Additional co-sponsors for the bill are expected once Congress returns from recess in two weeks.
Image: Win McNamee/Getty