Putting the Cart Before the Horse? Top Panel of International Criminal Law Experts Proposes “Extraordinary” Criminal Tribunal for Syria

by Julian Ku

As one commenter to Ken’s post on the draft UN Security Council Resolution notes, there will be no Security Council referral to the ICC on Syria. Currently there is one paragraph in the draft resolution expressing the Security Council’s “strong conviction that those individuals responsible for the use of chemical weapons in the Syrian Arab Republic should be held accountable;”  That’s not much, but it might be enough of a hook for some future UN Security Council or a future Syrian government to set up a hybrid ad hoc criminal tribunal to hold “accountable” those users of chemical weapons.

So it is worth noting that friend of blog Michael Scharf of Case Western Reserve University Law School alerts us to a proposed “Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes” that he, and a panel of blue-ribbon international criminal law experts, have released under the auspices of the Public International Law and Policy Group (PILPG).  The panel of experts is both distinguished and experienced on questions of international criminal law, and on the nitty-gritty details of setting up international criminal tribunals.  They will be discussing next week at a press conference in DC and it should get quite a bit of attention among US and UN policymakers.  It is a discussion draft, and it is not an attempt to demand the UN or Syrian governments establish something exactly along these lines.  Rather, it is an attempt to get the ball rolling among lawyers and policymakers.

One move in the proposed draft stands out.  The proposed tribunal is not exactly an international criminal tribunal, and indeed, it is not necessarily even a hybrid tribunal (with a mix of international and domestic judges) although its closest analogue appears to be Cambodia. Rather, it could be simply a special court set up under Syrian law to prosecute high-level offenders for violations of international law.  One advantage to this approach?  I don’t think it would require UN Security Council action to set up such a tribunal.  So that is a useful nod to political realities and Russia’s current position.

One (really big) disadvantage to this approach? We would need a new Syrian government to set up and carry out this proposed statute.   And to get that new Syrian government, would we have to promise some sort of immunity to the old Syrian government that committed all those horrible crimes we want to prosecute?

Obviously, there is a lot to sort through, and I do salute Prof. Scharf for getting the conversation rolling in a useful and politically realistic way.  But there are not just legal, but enormous political issues that need to be dealt with before key details of such a tribunal could be determined.

http://opiniojuris.org/2013/09/27/putting-cart-horse-top-panel-international-criminal-law-experts-proposes-ad-hoc-hybrid-criminal-tribunal-syria/

5 Responses

  1. The special Iraqi court didn’t function well, and Cherif was unahppy with the results despite his involvement in its creation.  Better the have an ad hoc ICT or a referal to the ICC.  Clearly, the U.S. won’t prosecute anyone in a federal district court who is reasonably accused of an international crime of genocide, a crime against humanity, or a war crime.  Chuckie Taylor was the only person prosecuted under the torture statute.  Obama and Kerry have decried Assad’s war crimes, but…..

  2. Re: One (really big) disadvantage to this approach? We would need a new Syrian government to set up and carry out this proposed statute.  And to get that new Syrian government, would we have to promise some sort of immunity to the old Syrian government that committed all those horrible crimes we want to prosecute?
    I agree in part: I think such discussions should be informal and as much as possible under the radar if only because knowledge of same by the Syrian regime simply adds another complicating variable to eventual resolution of this horrible conflict. I don’t think, however, there’s any necessity to the proposition that to get to a new Syrian government we need make promises of immunity to members of the Assad regime in toto, in particular, to the individuals at the pinnacle of decision-making. And what about possible crimes committed by members of the various opposition groups? It’s hard to imagine a new regime agreeing to prosecution of culpable individuals among the rebels.
     

  3. Patrick: these are merely some of the problems posed by an effort to have merely a domestic tribunal of the victors — and why even have a special domestic tribunal as opposed to the “regularly constitued” Syrian courts as required under common Article 3 of the Geneva Conventions and the customary laws of war reflected therein (see, e.g., U.S. S.Ct. decision in Hamdi) that would be applicable in the Syrian civil war/belligerency and any other armed conflict of an international character. 
    Cherif published an article earlier that is full of apt criticism of the speciqal Iraqi tribunal (can’t recall the citation right now).  Special post hoc domestic tribunals would violate common article 3 and CIL, but not a post hoc international criminal tribunal (esp. given the practice and expectations re: the IMT at Nurember, IMT for the Far East, ICTY, ICTR, and the ICC).

  4. Thanks Jordan. I don’t doubt that I failed to provide a comprehensive list of problems associated with a possible “domestic tribunal of the victors.”

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