Justice for Syria is possible, but only if political will exists
Atrocities have been the order of the day in Syria since war broke out in 2011, but the perpetrators are rarely tried. According to PhD candidate Elizabeth Van Schaack, the international community could bring justice in Syria, but only if there is political will. PhD defence on 29 April 2020.
Van Schaack has worked for many years in the field of international justice, as a prosecutor, defence counsel, plaintiffs’ counsel, diplomat, and professor. In the US State Department, she worked as Deputy to the previous Ambassador-at-Large for War Crimes Issues during the early days of the Syrian conflict. 'I worked extensively to advance options for justice in Syria. There were dozens of models explored, some more feasible than others, but none came to fruition.'
This PhD defence will take place online and it will therefore not be possible to attend this event.
This PhD thesis was inspired by Van Schaack's ambition to capture these various models and proposals in one place and explore what commends them and the geopolitical, legal, and practical challenges to implementing them. 'At first glance, the crisis in Syria suggests that the international community's experiment with international justice is essentially a failure. I hope in these pages to show that it was not entirely so, and that the conflict generated many creative ideas around justice, advanced the practice of international criminal law documentation and investigation, and empowered different actors to operate in this field.'
The book situates the war in Syria within the actual and imagined system of international criminal justice. It explores the legal impediments and diplomatic challenges that have led to the fatal trinity that is Syria: the massive commission of international crimes that are subject to detailed investigations and documentation, but whose perpetrators have enjoyed virtually complete impunity. The book attempts to capture the results of the creative energy radiating from members of the international community intent on advancing the accountability norm in Syria even in the face of geopolitical blockages within the UN Security Council. In doing so, it presents the range of juridical measures – both criminal and civil – that are available to the international community to respond to the crisis, if only the political will existed.
Several NGOs and entities have conducted population-based surveys of Syrians to glean their preferences around transitional justice. 'The results informed my own thinking about the centrality of criminal accountability to any transitional justice response. My affiliation with several human rights and international crimes documentation organisations gave me direct access to caches of original documents collected from Syria. In considering the legal challenges of providing accountability for a massive crime base, I engaged in classic legal research, drawing upon the history and jurisprudence of the war crimes trials held before international, hybrid, and domestic courts following World War II.'
The law is not the problem.
A major theme of this manuscript is that the law is not the problem. There is plenty of extant international criminal law and there are no legal impediments to the many options to bring justice to Syria. Instead, this is a problem of geopolitics. 'To accurately understand and convey the multilateral dynamics around Syria and accountability, I gave the relevant records of deliberations in the UN Security Council, the UN General Assembly, and the UN Human Rights Council a close read as well as other accounts of the policies of the United States, Russia, Iran, European Union Member States, and Turkey towards Syria drawn from the disciplines of political science and international relations. To capture the nature and scope of the violence, I collated the many reports produced by the Independent International Commission of Inquiry on the Syrian Arab Republic, human rights non-governmental organisations (NGOs) (notably Amnesty International and Human Rights Watch, whose reporting of atrocities has been comprehensive and damning), and media accounts.'
The conflict in Syria has placed a great strain on our system of collective security and raised acute questions about its ability to address the imperative of justice following the commission of mass atrocities, particularly when crimes are ongoing and there has been no regime change, Van Schaack concludes. Although we have the legal tools necessary to administer justice in these circumstances, the existing judicial architecture has been largely foreclosed by the failure of the Security Council to act, due largely to the exercise of the veto by Russia and China. Other options exist to 'internationalise' justice for Syria, although these are not without practical, legal, and political impediments. In light of the failure of the international community to avail itself of any of these options, domestic prosecutorial authorities and courts are stepping in to fill the accountability void that is Syria, although challenges exist in relying upon domestic courts to administer justice for a conflict as multi-faceted and destructive as the one in Syria.
It is too late to mount a strong justice response to the crimes being committed daily in Syria, Van Schaack concedes. It remains unclear whether this international engagement will have a lasting impact within Syria once it starts the arduous process of rebuilding itself post-conflict. 'Much depends on how the conflict gets resolved on the ground and whether the international community will condition reconstruction assistance on taking steps towards justice – an outcome that remains unsettled at the time this thesis is being finalised. For the future, this thesis provides a set of ready blueprints and legal arguments for advancing justice in other situations of atrocities. There is a whole range of ways that the international community can respond – what matters is having the political will to act.'
Supervisor prof. C. Stahn on Elizabeth van Schaack's research:
'In this thoughtful and well-crafted thesis, Beth van Schaack brings in her wealth of knowledge and experience in international justice, both as an academic and former US Deputy Ambassador for War Crimes. Her work combines political realism with creative imagination. Syria is often portrayed as an illustration of the paralysis of international law and the collective security system. Her PhD challenges this conventional wisdom. It demonstrates that the unavailability of traditional responses, such as the establishment of an international court or a Security Council-backed peace agreement has triggered new pathways to pursue accountability, including multiple fact-finding mechanisms, the creation of a new investigative mechanism and a revival of universal jurisdiction cases in some jurisdictions. Through new technologies and investigative techniques, much groundwork is being done while the conflict endures. Syria may thus be a transformative experience for accountability strategies and international law itself.'
Text: Floris van den Driesche