Transitional Justice without Transition

The penultimate chapter offers a discussion of the prospects for a genuine transitional justice process in Syria. Chapter 10 begins with a short history of the development of the archetypal tools within the transitional justice toolkit—criminal accountability, truth commissions, reparations, amnesties, lustration, institutional reform, and guarantees of nonrecurrence—and the way in which transitional justice efforts have become increasingly internationalized. This enhanced involvement of the international community in promoting transitional justice reflects the belief—premised on historical case studies and emerging empirical research—that societies in transition must address the crimes of the past in some capacity or risk their repetition. The chapter surveys the most recent research testing these claims, which has benefited from the creation of a number of new databases gleaned from states in transition. The chapter then describes ways in which the international community has tried to prepare for a future transitional justice process in Syria even in the absence of a political transition, including by training Syrian advocates, surveying Syrian communities to understand their knowledge of transitional justice and preferences for Syria, promoting psychosocial rehabilitation and solidarity among victims, and preparing for truth-telling exercises and institutional reform measures. The conclusion suggests ways in which the international community could still promote some form of transitional justice as part of the reconstruction process, even if Assad remains in power, which seems increasingly likely.

Civil Suits

Rounding out the matrix of accountability, chapter 8 presents several nonpenal options to bring justice to Syria, including civil suits in domestic courts against responsible individuals and entities and options for exercising jurisdiction over the sovereign state of Syria. Because there is no notion of state criminality under international law, only civil claims seeking money damages can be advanced against sovereign states. Jurisdiction over Syria exists before the International Court of Justice (ICJ) under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; however, so far no state has been willing to take Syria to task before the ICJ. And so, victims must bear this burden. In this regard, some tort law options exist in domestic courts, especially in the United States with its suite of statutes giving its domestic courts jurisdiction over certain international law violations in certain circumstances. This chapter features a groundbreaking suit against Syria under the United States’ Foreign Sovereign Immunities Act, which resulted in a $300 million judgment for the surviving family members of Marie Colvin, the intrepid war correspondent assassinated by the Syrian regime. The chapter observes that although civil remedies are no substitute for vigorous criminal liability, these suits do extend victims some dignitary benefits that may not accrue with participation in a criminal process, even as a partie civile, including the opportunity to control the litigation process and act where the public authorities may be unable or unwilling to do so.

Introduction

This chapter introduces the conflict in Syria, the various impediments to justice, and the book’s broad themes, including the observation that the paralysis in the U.N. Security Council has spurred a form of forced creativity that has generated a number of novel proposals for how to bring justice to Syria. In addition to providing an overview of the text, this introduction also presents the matrix of accountability that will structure the core of the book. This matrix is organized along two axes: the first (x) is premised on the distinction between criminal and civil liability; the second (y) compares the types of justice institutions and legal authorities that are available to bring individual perpetrators and even Syria as a sovereign state to justice. The remainder of the book explores different routes to accountability through this matrix and the various advantages presented by, and the challenges encumbering, the various justice options when it comes to the situation in Syria.

Conclusion

The book’s conclusion offers a number of overarching observations about the prospects of justice for Syria and highlights a few bright spots on an otherwise rather bleak landscape. These grounds for cautious optimism include the fact that we now have a robust and comprehensive international jus puniendi of international crimes, even if we lack sufficient institutions in which to apply it. Although the repeat failures of the U.N. Security Council have eroded our faith in the post–World War II system of collective security, other multilateral, regional, and domestic institutions have—to a certain extent—stepped in to fill the breach. This multilateral paralysis has thus spurred creative thinking about new jurisdictional theories, generated multiple and varied institutional proposals, and re-enlivened the principle of universal jurisdiction after a period of decline. The enhanced sophistication of international crimes documentation ensures that future transitional justice efforts will have the evidence needed to hold those most responsible for abuses to account. While the many accountability proposals have yet to bear fruit, it is now clear that they suffer from no legal impediments; all that is needed is the political will and resources to bring them to fruition. All of these developments are the work of an epistemic community of justice entrepreneurs—representing multilateral institutions, sovereign nations, and global civil society—who refuse to take “no” for an answer.

A Menu of Models

Given the limited availability of the International Criminal Court (ICC) when it comes to the crimes being committed in Syria, chapter 6 presents an array of legal theories and practical modalities for exercising international jurisdiction that do not involve the ICC or the U.N. Security Council, including a number of innovative paradigms for creating a dedicated ad hoc international tribunal. These options include the potential for a subset of states to pool their respective jurisdictional competencies to create a tribunal reminiscent of the Nuremberg Tribunal. Other available models include additional action at the U.N. General Assembly; a regional tribunal within the League of Arab States; a tribunal created by way of an international agreement among interested states; trials before specialized chambers in liberated areas within Syria or within neighboring states with varying degrees of international involvement; or the building of a shell of a special chamber that could be eventually inserted into the Syrian judicial system post-transition. Any of these models could incorporate various elements of hybridity. The chapter argues that many of these models offer a better option for the situation in Syria than the ICC given the extent and nature of the international crimes being committed (war crimes in a largely non-international armed conflict) and limitations within the ICC’s subject matter and personal jurisdiction. The chapter closes with a pragmatic discussion of steps that the international community could have taken to lay the groundwork for any of the models discussed, even prior to the end of the conflict or a political transition in Syria.

The Security Council and International Crimes in Syria

Chapter 3 revisits some of the conflict history through the lens of (in)action at the U.N. Security Council, whose discursive practices, pronouncements, operational initiatives, and vetoed resolutions offer a distinctive window into the trajectory of the conflict and the international community’s meager and ineffectual reaction to the atrocities underway. This chapter traces these malfunctions on a number of fronts alongside the few areas of progress. The areas of concern include condemnations of human rights violations and abuses; attempts to impose ceasefires and expand humanitarian access; the use of force and the Responsibility to Protect; inspiring the parties to pursue a political transition; the international community’s preoccupation with counterterrorism and countering violent extremism measures; neutralizing Syria’s chemical weapons; futile efforts to impose U.N. sanctions; and—most relevant to this volume—attempts to promote accountability, including a French-led effort to refer the situation in Syria to the International Criminal Court. Along the way, the chapter assembles the vetoes deployed by the P-5 during the Syrian conflict and captures the deteriorating dynamics within the Council chamber. The paralysis in the Council sets the scene for the chapters that follow, which recount efforts to promote accountability elsewhere. The chapter concludes with a short discussion of the way in which the Syrian conflict has further stimulated the Security Council reform effort.

A Short History of a Long Conflict

This introductory chapter offers a short history of the eight-year conflict in Syria, covering the arrival of the Arab Spring, the transformation of a long-overdue revolution into a full-scale armed conflict, and the evolution of the situation on the ground to date. This chapter prefaces the contemporary violence with a few historical events, surfacing atrocities committed in the 1980s that have never been the subject of any genuine accountability process as well as the entrenchment of authoritarianism under the House of Assad. It describes how the arrival of the Arab Spring reawakened long-dormant revolutionary impulses, which amplified the government’s repression. This, in turn, provoked an armed resistance and a full-scale conflict, which opened space for the arrival of the Islamic State of Iraq and the Levant (ISIL). The chapter recounts this history with reference to several key events and factors: the response of the international community, the opposition’s perpetual rearrangements, the appearance of ISIL, the commission of war crimes and crimes against humanity (including the infringement of the taboo against chemical weapons), the humanitarian catastrophe that ensued, forms of foreign intervention (aid, arms, and air strikes), and failed peace processes. In addition to recounting the involvement of major Western powers in the Syrian battlespace, it also touches upon the impact of spillover conflicts in the subregion. Others will write the definitive history of this tragedy; the goal here is to touch upon key milestones as this conflict unfolded and to set the scene for the efforts to promote justice and accountability for the atrocities underway.

Innovations in ICL Documentation Methodologies and Institutions

This chapter moves from this matrix of accountability to the emergent evidentiary landscape for atrocity crimes litigation. Chapter 9 thus surveys the various multilateral, national, and civil society documentation projects underway with an eye toward capturing new technological developments, analytical outputs, and public-private partnerships that have given rise to an unprecedented cache of potential evidence of international crimes in Syria, making it the most documented crime base in human history. The Syrian conflict coincided with the explosion of social media and digital technologies that render ordinary people capable of capturing the commission of international crimes on their cellphones. This surfeit of potential evidence has created both opportunities and challenges to accountability. Although not all this information will be admissible in a court of law, it has the potential to contribute to a range of transitional justice processes, including restitution and lustration efforts. This chapter is premised on the observation that when the Syrian conflict ends—which it must at some point—the documentation exists to undergird a comprehensive set of transitional justice processes if there is political will to undertake such an endeavor.

National Courts Step Up

Following the discussion of the options for invoking the International Criminal Court (ICC) or creating a new international institution to address the crimes in Syria, chapter 7 explores the potential for domestic courts to fill this impunity gap. Principles of complementarity, including the incorporation of international crimes into the world’s domestic penal codes, have contributed to the emergence of more empowered and aggressive domestic courts when it comes to the prosecution of grave crimes of international concern. The chapter demonstrates the way in which classic principles of domestic criminal jurisdiction—territoriality, effects, nationality (active and passive), protective, and universal jurisdiction—could all be, and are all being, activated to address the presence of perpetrators and victims found outside the Syrian battlespace. This chapter offers a taxonomy of the criminal cases proceeding to date in domestic courts around the world, some involving the state’s own nationals, some involving perpetrators found within the territorial state, and some proceeding in various ways while the defendant is still in absentia. This chapter offers explanations for the developments afoot within states—and the European Union in particular—that have enabled domestic courts to emerge as the most promising venue for justice. While compiling a number of overarching observations about this collection of cases, the chapter also acknowledges their inherent limitations, in general and when it comes to Syria in particular, as well as sources of resistance to the expansion of these forms of extraterritorial jurisdiction.

Prospects for Justice before the International Criminal Court

Chapter 5 begins the book’s journey through the accountability matrix with the International Criminal Court (ICC). Although Russia and China vetoed the ICC referral resolution, thus preventing the Court from exercising its plenary jurisdiction over events in Syria, the transnational elements of the conflict mean that there are still some options for invoking the Court’s nationality and territorial jurisdiction. Given the proliferation of foreign fighters hailing from around the globe, including from ICC member states, the Syrian conflict offers the potential to activate the Court’s nationality jurisdiction. In addition, the spillover effects of the war implicate the territories of ICC states parties, in the region and beyond, as well as states where the ICC is already active, such as Libya. Finally, there are theoretical arguments that the Security Council could refer “the situation involving ISIL” to the Court, which could encompass either the organization itself, untethered from any territorial space, or the transboundary statelet that once encompassed ISIL’s self-proclaimed caliphate. Although many advocates and diplomats assumed that the ICC should be in the lead adjudicating the many international crimes committed in Syria, this chapter closes with some notes of caution as to why the ICC may not be the ideal forum, even assuming a Council referral were forthcoming.