Despite the international community’s continuing inspections of the war in Syria—including several UN commissions of inquiry—the warring parties continue to commitunthinkable crimes and breach core norms of international law. Both Bashar al-Asad and the rebelling militias have perpetrated war crimes and crimes against humanity that include murder, torture, violence against civilians—and even the use of chemical weapons. Sooner or later—whether before or after the conflict—the international community and the Syrian population will demand that the alleged perpetrators be prosecuted. Indeed, the UN Security Council in May 2014 considered an initiative to try President al-Asad in the International Criminal Court (ICC), but it was vetoed by Russia and China.
This setback notwithstanding, the accumulation of heinous crimes will doubtless lead to further attempts to prosecute suspects, raising a number of questions. Where will prosecutions take place? Will the ICC be involved? Will states apply universal jurisdiction laws to try the perpetrators? Or will the Syrian society prefer doing “justice at home”?
If we ask who will apply universal jurisdiction—the ICC or independent states—the ICC would seem at first glance to be the best option. States can appeal to universal jurisdiction to assert extraterritorial jurisdiction, making the former a vital tool for the international community to punish perpetrators of extreme international crimes. But the judicial systems of independent states often face many obstacles in applying universal jurisdiction, such as political bias and allocation of financial resources. Some states, not wanting to jeopardize international relations with countries whose high officials are suspected of international crimes, have exerted universal jurisdiction mainly and manipulatively against relatively minor suspects. Moreover, states are bound by the customary law of immunity for heads of state and ministers of foreign affairs while in office. Some states, after considering the costs and benefits of exerting universal jurisdiction, prefer not to intervene.
The ICC was established to overcome these types of difficulties. As an independent body, it is free of such political considerations; and furthermore, the ICC Statute denies customary law immunity. Finally, the ICC’s financial considerations differ from those of independent states, with a budget specifically tailored for the purpose of prosecuting suspected perpetrators of international core crimes.
On a closer inspection of the Syrian case, however, the ICC does not seem a practicable option. The ICC’s jurisdiction is limited by three major conditions. First, its jurisdiction ratione materiae is limited to four types of international crime: genocide, crimes against humanity, war crimes, and aggression. Second, its jurisdiction ratione loci is limited to offences committed on the territory of a state party to the statute. Third, its jurisdiction ratione personae is limited to offences committed by nationals of states party to the statute. Fourth, its jurisdiction is narrowed by the complementarity principle, according to which the ICC can only serve as a court of last resort and only when a state that has nexus to the case is unwilling or unable to exert criminal proceedings and trials.
As Syria is not a party to the ICC Statute, the ICC cannot exert its jurisdiction ratione loci or its jurisdiction ratione personae. Although the UN Security Council can, in fact, overcome the ICC’s jurisdictional limitations ratione personae and ratione loci, Russia and China will likely continue to veto such initiatives by the other members of the Security Council.
The complementarity principle, mentioned above, pertains to the last prosecutorial option for post justice in Syria—domestic jurisdiction. In cases where the domestic prosecutions in Syria are feasible and held in good faith—thereby fulfilling the ICC’s complementarity conditions—the ICC will avoid intervening and leave the case in the hands of domestic authorities. Domestic post justice, in fact, has many advantages, especially for societies in transition. It enables a cathartic process of rehabilitation and reconciliation, incorporates the needs of societies in transition as well as those of the victims of the crimes, and facilitates transitioning from authoritarianism to democracy.
If the state of Syria prevails beyond conflict, it will be a society in transition. Already a “mosaic society,” composed of different sects struggling over power, Syria will likely see a deepening in societal divisions at the end of the war. Accommodating them will require means of transitional justice, such as truth commissions, local trials or hybrid courts, and other measures aimed at rehabilitation and reconciliation in societies that have suffered from atrocities.
Nonetheless, several impediments could hamper an effective and good faith process of local justice in post-war Syria. The Syrian judicial system may collapse, leaving it unable to exert prosecutions. And even if it does overcome the legal and bureaucratic chaos, the question of whether Syria’s judicial system would be willing to perform criminal procedures in good faith remains open. The sectarian trends characterizing Syria since its establishment—and which led to the current conflict—may jeopardize the new regime’s ability to conduct genuine criminal procedures. It will be difficult for lawgivers to secure defendant rights without being influenced by resentment against one sect or another, especially when members of some of the sects are responsible for the grievous outcomes of war crimes and crimes against humanity. Finally, Syria’s limited practice when it comes to implementing international standards of human rights—a crucial substance of due process of law—highly jeopardizes any good faith procedures.
This brief evaluation of the prospects for different trajectories—their advantages and drawbacks—of post-war justice in Syria leaves many questions unanswered. It will be left to the international community, together with the people of Syria, to decide which course to follow.