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