In Syria, the situation on the ground is stabilizing, and it is becoming clear that the seven-year war is likely ending. However, as President Bashar al-Assad calls refugees back to Syria, the international community is left to wonder whether those responsible for the mass atrocities will be held accountable. Since 2011, the UN Commission of Inquiry on Syria has produced thirteen reports on alleged violations of human rights, perpetrated war crimes, genocide, and crimes against humanity by multiple parties within the multifaceted conflict. The complexity of the conflict, the likely “victor,” and the unique position of the actors preclude most international criminal law mechanisms from achieving justice. Universal jurisdiction may be the only viable way to prosecute alleged criminal actors from Syria.
Under customary international law, and as codified in the Rome Statute, war crimes, crimes against humanity, and the crime of genocide are unique because they create individual criminal liability in contrast to state responsibility. Individuals suspected of egregious crimes have been tried in domestic courts in the target state, ad hoc tribunals with international enforcement, hybrid ad hoc tribunals that possess qualities of both domestic and international courts, the International Criminal Court (ICC), and international domestic courts under universal jurisdiction statutes. The context of the conflict determines which mechanism is best suited; however, in the context of Syria, the question is not which mechanism is best, but instead, which mechanism is possible.
Syrian courts and ad hoc tribunals have issues of legitimacy and feasibility. First, despite overwhelming evidence, the Syrian government denies that its forces have used chemical weapons or committed atrocities. Additionally, in September 2018, the Prime Minister for Foreign Affairs equated opposition in Syria to foreign-backed terrorism, suggesting an international conspiracy to destroy the country. Therefore, the Syrian Government will likely only prosecute non-state actors, international opposition fighters, and terrorist groups. Second, because Assad is the likely victor of the conflict, both ad hoc tribunals established in a national court system and an international tribunal would require his regime’s cooperation. It is unrealistic to assume that Assad will sign any treaty creating a tribunal or respect its independence if it was to judge him and his governments’ alleged crimes. Lastly, Syria is in ruins and lacks resources and institutional functionality. Thus, domestic courts, hybrid ad hoc tribunals, and international ad hoc tribunals are problematic.
A UN Security Council referral to create an international tribunal or to send the case to the ICC is also improbable. Russia is Assad’s strongest international ally and Russia’s veto power on the Security Council is unwavering. Additionally, Syria is not party to the Rome Statute, and therefore – without a referral – the court lacks jurisdiction unless Syria voluntarily accepts the Court’s jurisdiction. As addressed above, both are impossible due to Assad’s likely victory and Russia’s permanent position on the Security Council. For example, after the chemical attack in April 2018, Russia used its position to execute its twelfth veto pertaining to resolutions in Syria. Moreover, Russia is arguably responsible for war crimes in Syria and will not vote to open an investigation onto itself.
The Geneva Conventions established that some offenses, such as war crimes, crimes against humanity, and genocide, are so serious that international law allows states to seek prosecution in their national courts through universal jurisdiction statutes even if they are not party to the conflict and its own citizens are not involved. Typically, universal jurisdiction is the least favorable instrument because there is pushback that the mechanism interferes with state sovereignty and lacks jurisdiction. Yet, Swedish prosecutor Kristina Lindoff Carleson argues that the mechanism is appropriate because the victims of the atrocities need access to courts, and there is an international responsibility to block impunity and safe harbor for accountable parties. Sweden and Germany are the first two countries where individuals have been convicted for crimes committed in Syria.
Laila Alodaat, a Syrian human rights lawyer at Women’s International League for Peace and Freedom explains, “[The Syrian conflict] is not some abstract human rights issue. . . hundreds of thousands of victims and their families need justice, remedy, and assurance that the future will be free from such violations.” Khaled Rawas, who was tortured by the Syrian Government and is now perusing justice in Germany, explains that the Syrian people lost faith in civil society; however, the universal jurisdiction mechanism is a way to change that.
Despite the complexity, sustainable peace in the region requires that all parties, including the Assad regime, be prosecuted and that atrocities and victims not be ignored. Therefore, the previously contentious mechanism of universal jurisdiction will likely become the international community’s preferred tool of justice.