SCSL Symposium: A Legal Legacy that Opens the Way to Justice in Challenging Places and Times–Part II

Stephen J. Rapp is a Senior Fellow at the United States Holocaust Memorial Museum’s Center for Prevention of Genocide and at the Blavatnik School of Government of Oxford University. He was formerly Ambassador-at-Large heading the Office of Global Criminal Justice in the US State Department, and between 2007-2009, was the Prosecutor of the Special Court for Sierra Leone. This essay was initially prepared at the request of FIU Law Review for its micro-symposium on The Legal Legacy of the Special Court for Sierra Leone by Charles C. Jalloh (Cambridge, 2020). An edited and footnoted version is forthcoming in Volume 15.1 of the law review in spring 2021.

In 2019, the Swedish government called for the creation of an international court to try European citizens accused of committing crimes while in the service of Da’esh (aka ISIS) in Syria, many of whom are in the custody of Syrian Kurdish forces after the defeat of Da’esh in eastern Syria.  From subsequent discussions, and from a published legal opinion of Prof. Dr. P.A. Nollkamper that was requested by the Dutch government, it became clear that the legal basis for such a court was to be the “pooling” of the active personality jurisdiction of member states to try their own nationals for these extra-territorial crimes.  As noted in the Dutch opinion, the implementation of the concept would face many practical difficulties, but it was legally sound:  “With such a treaty, the parties would transfer the jurisdiction they each have over members of ISIS to the tribunal.”

The concept ran into opposition because it seemed designed to avoid the states’ responsibility to take back their own citizens because their governments were afraid of political repercussions if the individuals were soon freed by domestic courts because weak evidence of serious criminal conduct could result in short sentences or acquittals. It was also opposed because of the violation of the principle that an international court should pursue equally those alleged to have committed serious crimes on whatever side they fought.

At the same time European states were considering pooling their active personality jurisdiction to bring to trial European members of Da’esh in a multi-state court, European prosecutors were achieving historic but limited success in using universal jurisdiction to bring to trial Syrian regime perpetrators in European courts.  These two developments have opened the door to the consideration of a multi-state court that would pool all of the state parties’ jurisdiction of whatever form—active, protective and universal–to achieve more complete justice for the victims of the crimes in Syria.   This idea was proposed in a widely-circulated paper by Dr. Ingrid Elliot, MBE, issued in May 2018 and titled “A Briefing Note—Pooled Extra-Territorial Court Option for Syria.”

Charles Jalloh’s book teaches us that the best way to create a pooled jurisdiction court for Syria would be by engaging the broader “international community” in its establishment, as it was in the birth of the of SCSL–the statute of which was negotiated between Sierra Leone and UN Secretary-General (UNSG), the latter acting under a direction from the UNSC in Resolution 1315.    Of course, unlike Sierra Leone, Syria as the territorial state would certainly not now wish to be a state party.  But Senegal, the state party of the treaty-based EAC was not the territorial state of Habre’s crimes.  And yes, Russia would veto any UNSC resolution like UNSCR 1315.  But when the Cambodia tribunal was created, China was not supportive, and the direction for the UNSG to negotiate came from the UN General Assembly. 

Consider that the UN General Assembly has already approved and funded a mechanism to provide a foundation for criminal accountability as to the mass atrocities in Syria.  In December 2016, the UNGA adopted Resolution 71/248 (by a vote of 105-15), creating an Independent Impartial Independent Mechanism (IIIM)–a proto-Office of the Prosecutor for the international crimes committed in Syria since March 2011.  The IIIM since has been hard at work building case files that could be ready for trial.   This IIIM could thus provide an UNGA-approved core for the investigative and prosecution capacity of a Special Court for Syria–a treaty-based court with statute negotiated pursuant to the UNGA’s direction to the UNSG to seek agreement with those states wishing to pool their jurisdiction over crimes committed in Syria.  

There is also another route by which the “international community” could be engaged in the creation of a hybrid court that would benefit from the jurisprudence of the SCSL.  The Executive Council of the Organization for the Prohibition of Chemical Weapons (OPCW) representing 193 state parties, adopted a Decision on 7 July 2020, based on the findings of its Identification and Investigation Team (IIT) about the use of sarin and chlorine in a number of specific attacks in Syria, that “emphasize[d] the importance of bringing to justice those individuals responsible for the uses of chemical weapons found by the IIT to have been perpetrated by the Syrian Arab Republic, including those who ordered such attacks.”  The Decision noted that the OPCW had concluded a Memorandum of Understanding (MOU) with the Syria IIIM which had its “full support” and to which it would provide relevant information.   Finally it promised “the greatest measure of assistance in connection with criminal investigations or criminal proceedings in accordance with international law.”

The OPCW Executive Council provided Syria with 90 days to respond, and if Syria failed to redress the situation, recommended that the Conference of State Parties (CSP) take “appropriate action” when it convenes in November-December 2020.   Given the language of the OPCW Executive Council Decision, it would be the logical next step for the CSP to call on state parties “to exercise their criminal jurisdiction in accordance with international law, including by forming an international court (or Special Court for Syria) that would pool their jurisdiction and resources to ‘bring to justice the individuals responsible.’”

The experience of the SCSL would provide useful lessons for such a Special Court for Syria as to the processes of appointment, management, and cooperation, to ensure an impartial and effective judicial institution.  Of course, an SCS should also leave open the door for a post-transition Syria to join the court, bringing in its jurisdiction and judicial personnel, and fully benefiting from the hybrid model.

Some fear that we are at the end of the age of accountability that saw the successes of ad hoc and hybrid courts and the operationalization of the ICC.  Charles Jalloh shows how the jurisprudence of one of those courts, the SCSL, has provided a valuable and useful legal legacy—one that can open the way to justice in even more challenging places and times.