New Jersey Rep. Chris Smith (D) and a group of International jurists have been calling for the formation of an ad hoc war crimes tribunal to address the atrocities committed in Syria over the past two years. Of course, this comes at a time when the world has already seen the formation of several ad hoc tribunals (Nuremburg, ICTY, ICTR, ECCCC, Sierra Leone, Lebanon, etc.) and the permanent International Criminal Court. However, just because the precedent has been set by existing courts doesn’t necessarily mean that the creation of a Syrian tribunal will be successful.
Syria is geopolitically unique. Russia, the United States, Iran, China, Turkey, Israel, Lebanon, among others, all have something to gain or lose from the formation of a Syrian tribunal, or from the outcome of events in Syria generally. Syria, unlike Rwanda, Cambodia, or even Yugoslavia, is situated in the heart of an area that is subject to an ominous power struggle between opposing forces. As a nation divided by an ideological struggle that in many ways defines its region (Shiite v. Sunni), Syria can be seen as the cornerstone to a paradigmatic shift of global politics. Consequently, I believe that the successful formation of a Syrian tribunal is far from written in stone.
In order to form such a tribunal the United Nations Security Council would have to pass a Chapter VII resolution, which is no easy task in light of an ever-looming U.S., Russian, or Chinese veto. Recalling the debates over the International Criminal Tribunal for Yugoslavia (ICTY)––in which Russia, protective of Serbia, argued against the tribunal and threatened to veto if the tribunal was aimed at seeking jurisdiction over only Serbian agressors––there seems to be room for a similar hold-out here. Although Russia eventually voted for the tribunal, there was no shortage of apprehension about whether the resolution would be passed.
Moreover, in the case of the ICTY the international community was rallied around conclusive evidence that genocide had, in fact, been committed. Here, the answer to that fundamental question––whether genocide has been committed––is murky at best, and the cacophony of international opinions on the matter may serve as proof that the institution of a Syrian war crimes tribunal has a long road to hoe.
Under the Geneva Conventions “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. Therefore, proof of mens rea to commit genocide must be shown.
In my opinion, it is clear that the Bashar Al-Assad’s regime has not intended to destroy, in whole or in part, a national, ethnical, racial or religious group. Instead, what is happening in Syria can be best described as a brutal and autocratic response to social dissidence which is being waged against all in opposition indiscriminately and with equal force. With that said, there may be hope for a war crimes tribunal that has jurisdiction over war crimes and crimes against humanity; however, such a tribunal, in my opinion, would have to grant jurisdiction over crimes committed by both the Assad regime and the Free Syrian Army and its affiliates if it is to avoid a Russian or Chines veto.
Under international law “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a)Murder; (b)Extermination; (c)Enslavement; (d)Deportation or forcible transfer of population; (e)Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f)Torture; (g)Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h)Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i)Enforced disappearance of persons; (j)The crime of apartheid; (k)Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
And, “war crimes” are defined in large part by the 1949 Geneva Conventions and Protocols, which can be viewed at http://www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/index.jsp.
I submit that the formation of a Syrian Tribunal may face more opposition than tribunals-past because of the absence of genocide in the Syrian conflict. In Rwanda, Yugoslavia, Cambodia, and elsewhere, the prosecution of those responsible for genocide was the primary motivation for the formation of ad hoc tribunals. Genocide is synonymous with the most brutal and terrifying attacks on the human race and, as such, it is arguably the most difficult crime to turn a blind eye to. On the other hand, while war crimes and crimes against humanity, like genocide, are jus cogens offenses, they are also much more common and often, at least implicitly, perceived as less repugnant.
In short, I question the feasibility of passing a Security Council resolution to form a Syrian War Crimes Tribunal. While I am in no way unsympathetic to the violent and criminal nature of the attacks that President Bashar Al-Assad has waged against his people, I am convinced that those acts have not amounted to genocide. As such, I believe that Syria’s geo-political importance may prevent a war crimes tribunal from being passed through the Security Council in light of likely Russian or Chinese veto.
What do you think about the formation of a new Syrian War Crimes tribunal? Is the Security Council likely to adopt a resolution to create one? Do you think that genocide is being committed? And, if so, why?
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