American Non-Governmental Organizations Coalition for the International Criminal Court: March 2017

Written by Kalila M. Jaeger

The founding of the International Criminal Court (ICC) was based on one simple precept: never again. The Nuremberg Trials, conducted in the first international justice tribunal, set a powerful precedent for the international Criminal Court (ICC), a permanent court for the criminal prosecution of atrocities whose entry into force was only realized in 2002. Yet despite broad international support for the ICC, despite the fact that it has accomplished landmark victories and convictions in the last few years, the court has not been able to act against the horrors of the Syrian Civil War. Why isn’t more being done, and is there any way to hold the perpetrators of atrocities in Syria accountable?

Limits on the Court’s Powers

The Court’s founding Rome Statute provides specifically how cases can and cannot be referred to the Court. The Prosecutor does not have the power to pursue just any case: it must fall within the ICC’s jurisdiction; it must have been committed on the territory of a country that has ratified the Rome Statute or by one of its nationals. Those nations that have ratified are referred to in the Statute as State Parties. The Court’s founders included an additional integral provision in the jurisdiction guidelines: in cases where extreme atrocities are committed in a non-member state, atrocities that are determined to represent a threat to international peace and security, a referral from the UN Security Council would override other jurisdiction rules and trigger an investigation by the Court. Any of the permanent members of the Security Council, (China, France, Russia, the United Kingdom and the United States), however, have the right to veto Security Council decisions. A single veto vote nullifies all others, a fact which has prevented the Security Council from referring the Syrian situation to the ICC due to Russia’s allegiance to the Syrian President Bashar Al-Assad.

The Syrian Civil War has raged on six years now, and many have questioned why the ICC isn’t playing a more active role in helping to end the seemingly endless human rights violations. Assad’s government has a discouraging number of allies, and the conflict in Syria has long ago escalated from a battle between Assad loyalists and anti-Assad rebels into something much larger and more chaotic. Before we can fully understand paths to legal accountability, we must gain an understanding of each major player in the fight and their goals.

How did the Syrian Civil War begin?

Like other uprisings in the Arab Spring of 2011, rebellions in Syria sprang up that year over lack of civil liberties and from pushback against oppressive economic conditions (Lanza, 2011). Extreme drought from 2007-2010 had forced millions to migrate from rural areas into cities, intensifying poverty, overcrowding and general social unrest in the cities (Blanchard et. al, 2014). Brutal crackdowns on the protesters served to further inflame the public, and because much of the Middle East region was engulfed in pro-democracy uprisings, some of which, like those in Egypt and Tunisia, were ultimately successful, the protest movement gained massive momentum. Importantly, though, not all those opposed to Assad’s regime were aligned ideologically; there was no consensus among protesters as to an alternative (Blanchard et. al, 2014). As clashes between government forces and protesters continued and escalated into armed conflict, sectarian divisions between different groups of protesters became more apparent, and friction between them intensified. Intervention from foreign powers escalated the conflict further, into what many view as a proxy war reminiscent of the Cold War era. Infighting and violent struggles for political and religious authority have devolved into the worst display of human rights violations and atrocities of the 21st century. We are inundated with imagery of cities on fire, under siege, drone strike after drone strike, starvation, torture and enforced disappearances of half a million people. Twelve million Syrians are internally displaced from their homes or teeming at the borders of the European Union begging for refugee status. The perpetrators of the Syrian Civil War must be held accountable now. But who are they?

Who’s responsible for human rights violations in Syria?

Bashar Al-Assad and his domestic loyalist forces

Bashar Al-Assad has been the President and Commander in Chief of Syria since the year 2000, a role which he came to fill following after his father through dubiously “democratic” elections.The regime calls itself secular, but the manipulation of sectarian conflict in the country, between Sunni and Shiite Muslims, has long been a tool of political power by the Assads. The Alawite Shia minority religious group, of which Assad is a member, has been a bastion of support for him throughout the conflict. Although Syria is majority Sunni, the country’s security establishment has historically been dominated by the Alawites (Mallat, 1988). As such, most anti-Assad fighters are Sunni, whether domestic or international, and most international powers who support Assad have historically been aligned with Shiite interests.

Since the uprisings in 2011, Assad has ruled with an iron fist, intensifying his crackdowns on rebel groups exponentially and using the Syrian state army to carry out his bidding with excruciatingly brutal tactics, resulting in the worst massacre the world has seen in half a century. Assad will seemingly stop at nothing to retain his power over Syria, and the willingness of foreign powers, notably Russia and Iran, to assist him has made a deposition nearly impossible. Next to ISIL, Assad and his loyalist forces are the most brutally violent players in the Syrian conflict with the most innocent blood on their hands (Bhardwaj, 2012).

Main goals: to remain in power and stamp out opposition, defeat ISIL.
Allegations of human rights abuses: The UN confirms at least nine intentional mass killings since the start of the war, with the Syrian government and its allies responsible for eight of them. War crimes include use of chemical weapons, indiscriminate bombing of civilians and aid workers, non-military targets, enforced disappearances, attacking towns, villages, and non-military targets, use of starvation of civilians as a method of warfare, use of rape as a weapon of war, deaths in custody of government officials, and the prevention of medical aid to civilians and children. He is also responsible for crimes against Humanity for the use of torture (Human Rights Watch, 2015).

Iran

As a majority Shia nation and a regional neighbor, Iran backs Assad’s regime, and sees the continuance of the Assad’s political power as instrumental to Iran’s interests in the region. Iran’s Supreme Leader, Ali Khamenei, vocally supports Assad, and the nation has provided arms, technology and military training to loyalist forces since the start of the conflict. According to the UN convoy, Iran spends approximately 6 billion dollars annually supporting the Assad regime. Iran has lost over 1,100 troops in the fighting since 2013. Many of the soldiers it deploys, who work closely with Assad’s loyalist forces and with Hezbollah forces are Afghani and Pakistani refugees who agree to serve in Syria in exchange for salaries and Iranian citizenship. Of the 1,100+ fallen Iranian troops, over 750 are refugee mercenaries.

Main goals: keep Assad (major ally in the region) in power, prove to the US that the nuclear deal did not de-fang Iran, defeat ISIL.
Allegations of human rights abuses: Iran is accused of the coercion of undocumented Afghans to fight in Syria. As one of the main financial backers of Assad’s government, the atrocities committed in his name are partly Iran’s responsibility.

Russia

Russian intervention in Syria began in earnest in 2015 when Assad requested military aid from Putin to fight rebels and Jihadists. In response, Russia stationed military advisors and special operations forces in Syria, and launched airstrikes against rebel and Jihadist targets in the South. Although Russia’s aim to eradicate Jihadist militant groups like ISIS aligns with US goals of the same nature, its willingness (and apparent eagerness) to strike anti-Assad forces-- even those who are considered “moderate”-- is fundamentally at odds with US objectives. Most pundits agree that this is part of a larger attempt by Russia to rebuff US influence in the region (Allison, 2013). Russia has claimed that allowing Assad’s forces to fall would enable terrorist groups to consolidate and seize control of the region. The Syrian Observatory for Human Rights has said that in the first year of the Russian intervention, between September of 2015 and February of 2016, Russian airstrikes had killed 1,700 known civilians, over 200 of whom were children. Syrian Network for Human Rights estimates casualties even higher; reports show that Russian airstrikes have killed more civilians than either ISIS or Syria’s loyalist army.

Russia stands accused of major human rights violations stemming from their participation in the conflict, including the bombings of civilians and a United Nations aid convoy driven by aid workers and carrying food and medical supplies in the fall of 2016 (Borger, 2016). Russia initially claimed that the reports of the attack were fake, and, after eventually acknowledging its occurrence, that they had had no part in it: that the convoy had been attacked from the ground by another coalition. However substantial photo, video and eyewitness documentation have proven this tacitly false and have shown that Russian and Syrian forces were in fact the perpetrators of this terrible crime. Regardless of whether the bombing of humanitarian aid workers and civilians were committed with criminal intent, though many strongly believe that they were, the bombings were at the very least “reckless” and “indiscriminate”, and, as such, constitute war crimes under the Rome Statute. Furthermore, some evidence showed that the planes had dropped non-precision bombs and/or incendiary weapons. If the latter is proven to be true, Russia will be in violation of the 1980 UN Convention on Certain Conventional Weapons, to which the Russian Federation signed on as a state party (Hokayem, 2013).

Main goals: keep Assad in power, rebuff US influence in the region, end European sanctions.
Allegations of human rights abuses: Russia stands accused of violations of the UN Convention on Certain Conventional Weapons, and bombings of civilians and aid workers.

ISIL

The Islamic State of Iraq and the Levant is a Salafi Jihadist group, or unrecognized state. They operate mostly as a military group, and are followers of the most extreme form of Wahhabi Islam. ISIL rose to notoriety in 2014, following its massive offenses in Iraq, the Sinjar Massacre and the capture of Mosul, during which time it made a name for itself through the use of extreme terrorist tactics and its widespread publishing of videos of beheadings (Ahram, 2015). Recognized by most nations as a terrorist organization, ISIL has deep historical roots in the regions, stemming from Al Qaeda affiliates in 1999, and participating in Iraqi insurgency in 2003 against American forces (Hegghammer, 2011). The group claims to be a state and a caliphate and, as such, to have moral, religious and military authority over all Muslims. The group has been roundly rejected by nearly every Muslim group and coalition, but still holds immense power in the Iraqi region and has managed to launch large scale terror attacks against opposition parties and foreign governments over the last few years. The presence of operatives in foreign countries and it's frightening capability with digital technology have made ISIL a frightening adversary indeed, but most reports show that the group is losing traction and territory consistently at this point (Ahram, 2015).

Main goals: Seize as much regional territory as possible, execute opposition, practice and spread extremist interpretations of Wahhabi Islam
Allegations of human rights abuses: War Crimes: killings of civilians on a massive scale killings of hundreds of prisoners of war, summary executions, rape as a weapon of war, sexual slavery, use of child soldiers, use of chemical weapons, Crimes against humanity: systematic persecution of religious minorities (forced conversions), sexual slavery, mass executions and beheadings, destruction of cultural and religious heritage, Genocide: ethnic cleansings in Northern Iraq on an “historic scale” (Ahram, 2015)

Saudi Arabia

Since the summer of 2013, Saudi Arabia has made a name for itself as the single largest financier of Syrian rebel groups, and as the largest provider of arms and ammunition, especially Balkan-made, heavy artillery weaponry. These large scale deliveries of arms began in 2012, and were said to have been given in an effort to counter the effects of the massive influx of finances and arms from Iran to the Syrian government forces. Like Qatar, the funds have reached groups across the full spectrum of anti-Assad forces, including Army of Conquest and its Al Qaeda affiliates. A number of political conflicts between Saudi Arabia and its neighbors resulted in the arrangement of Saudi-funded training facilities being established in Jordan. Saudi Arabia’s intelligence agency was instrumental in 2012 in convincing the United States to take seriously the claims that chemical weapons were being utilized in the fight. It was also revealed in 2013 that the Saudi government had forced death-row inmates to fight against Assad’s forces to avoid beheading. The capital and stronghold of ultra-orthodox Wahhabi Islam practice, the use of traditional capital punishment in Saudi Arabia is widespread and often practiced extrajudicially. Collaboration in Middle East conflicts like this one, along with an addictive, oil-soaked alliance have made breaks with the Saudi government over human rights violation (which are extremely well documented) extremely rare and very politically challenging.

In 2015 after two rounds of negotiations in Vienna, Saudi Arabia hosted a conferences for the multitude of Syrian opposition groups, both political and military, though it notably excluded Kurdish factions. The goal was to come to an agreement about a common political platform, in order to initiate negotiations with the Syrian loyalists, and by the end of the conference a military alliance between approximately 30 Muslim states was established in opposition Assad, though pundits question the efficacy of this group in practice.

Main goals: Remove Bashar al-Assad from power and destroy ISIL through common Muslim coalition, eliminate threats to the oil market such as ISIL capture of oil resources
Allegations of human rights abuses: forcing of death-row prisoners to participate in battle

Paths to Accountability

With so many egregious violations of human rights principles, it is despicable to imagine that the participants in this conflict could simply walk away freely. Yet with a devilishly complex and tangled web of players, and with such specific ICC regulations about case referrals, it is proving difficult to bring the perpetrators of these crimes to justice. Without a unanimous referral by the UN Security Council, the ICC cannot take on the case of crimes committed in a non-member state. Other mass atrocities have been tried and perpetrators have been convicted in the past; we know that when the international community comes together with a determination to bring justice, it can be accomplished. Still, no two cases are the same, and every time the process takes an enormous amount of political goodwill and cooperation, collaboration structurally and financially between a wide array of countries, often overlooking political alliances and tensions for a greater cause. What is unique in Syria’s case and what are some possible paths towards accountability?

International Criminal Court

The sad truth is that unless Russia and China have a major change of heart, there is little hope for ICC involvement in Syria at the present time. Without a referral from the security council, the most the ICC would be able to do is to prosecute participants in the conflict who are nationals of ICC member states, such as Jordan, France, the United Kingdom or Tunisia, an action which Prosecutor Bensouda has actively threatened to take (ICC, 2015). Based upon most investigations, however, it does not appear that the foreign fighters the international intelligence community has been able to identify are high enough up in their ranks to be considered by the ICC as viable defendants. It appears that, for now, the ICC’s hands are tied from every angle.

Russia’s alliance with the Syrian government is probably the biggest complicating factor in terms of prosecution because they hold a great deal of power internationally in arenas like the UN. However, if the Syrian conflict continues on in this way for much longer, the political and economic costs of supporting Assad’s government will likely at some point overtake the benefits for Russia, and at that time it may eventually be possible to pry the Kremlin’s grip off the Security Council veto. Still, most countries would rather not see cases brought to the ICC that are likely to result in verdicts of their own culpability. Some suggest that Russian officials could be offered immunity, or even that Russia could be offered state immunity in the proceedings if it would enable the ICC to move forward, but these suggestions are on dubious legal footing and a path forward from there is unclear.

Alternatives to ICC Trials

In the past, there has been success in trying perpetrators of human rights violations with temporary tribunals, such as those in the former Yugoslavia, in Rwanda or in Timor-Leste. However, these tribunals are extremely costly and difficult to establish, and the ICC was developed specifically to replace these temporary courts with a permanent institution. Nevertheless, if the establishment of an ad-hoc tribunal would enable the trial of perpetrators of atrocities, it is a path worth considering. The tribunal would have to be established by agreement between the UN General Assembly and Syria, or by some regional organization. Some experts have even mapped out a blueprint of how to organize it.

There are a few distinct advantages to the tribunals: they are usually directly on-site, rather than isolated in the Hague, (which can make evidence-gathering more streamlined), most are hybrids (including both local and international judges and other personnel who may be more responsive to and aware of local conditions) and, most importantly, they do not require the consent of all major world powers, like agreements made through the UN Security Council do. Russia and China would not have to be consulted.

However, tribunals also have major drawbacks. They are expensive to establish and maintain, (the proceedings last years and inevitably take longer than planned), and very difficult to recruit for; because they are by nature temporary, they offer no career or future to those judges and personnel who agree to lend their talents.

The establishment of a temporary criminal court is an option, but certainly not an easy one. It is difficult to imagine how it would unfold in Syria; likely we would have to wait for a successor regime before attempting to move forward, as was done in Cambodia. Perhaps the indictments of some, if not all, of the players in the war could begin sooner, and in a time of greater international cooperation the tribunal could continue on to the more controversial and complex indictments. As we know from Yugoslavia and Rwanda, these processes tend to take a decade or two at least, so there would be time to wait out the Trump administration and perhaps the Assad regime while the start of the tribunal was underway.

Reasons for Hope

Although it is easy to view Syria as a lost cause from an international justice perspective, there is reason for optimism moving forward. The search to identify foreign nationals who have participated at top levels in the Syrian civil war is by no means over; the Prosecutor of the Court has made this clear. Furthermore, a discussion is beginning among international law experts regarding Assad’s former life in London, where he worked as an ophthalmologist for six years between 1988 and 1994, before his return to Syria and his involvement in politics. Some experts wonder whether this fact could possibly be a foothold in the fight against impunity; what was Assad’s legal status as a resident of London? In order to hold medical certification, most countries require some kind of permanent status in the nation. The British, as citizens of a country who has ratified the Rome Statute are eligible to be tried by the ICC. Did Assad’s ophthalmology license give him anything close to nationality? Serious investigations are underway to seek answers for questions like these, and we can only hope that their results with arm us with tools to proceed.

The other good news is that there is no state and very few parties that would protest an indictment of major ISIL commanders. Their determination to annihilate and alienate all major world powers may in the end be their undoing. Assad has continually claimed that to cease fire on the rebel groups would enable terrorist groups like ISIL to set deeper roots in the region. This may or may not actually be his motivation for such brutality against the Syrian people, but if we take him at his anti-ISIL word and assume that Russia and China plan to uphold their loyalty to him as well, there may actually be a chance at achieving a Security Council consensus to refer ISIL’s war crimes and crimes against humanity to the ICC. They are by no means the only perpetrators of large-scale atrocities in Syria, but seeing them brought to justice is a goal that almost every country, powerful or not, can agree on. If nothing else, there is likely a path forward there.

We will not likely see justice brought to all perpetrators of human rights violations in Syria any time within the next few decades, but there will come a time when the administrations of the major international powers are more amenable to cooperation with the international justice community and the ICC can proceed in earnest. In the meantime we must never let the people of Syria forget that the world is watching, and that the crimes committed against them will not go unpunished. The evidence and testimony exist and the Court is in place to hear it, no matter how long that takes to come to fruition. Someday these factors will combine, and perpetrators will be held accountable. If there is a way to indict ISIL, the international community will demand it. Until that day, we have an obligation to maintain intense pressure on our national and international institutions and demand that they invest in and work towards initiatives to bring relief to the Syrian people. What is happening in Syria is simply too horrific to be disregarded by the international community, and we have faith that, ultimately, these atrocities will not go unpunished.

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