War in Syria and the uncertain future of international criminal justice

Why an international tribunal is necessary and how Canada might help.

By: /
17 March, 2021
Head and founder of the Commission for International Justice and Accountability William Wiley poses for a picture in an undisclosed location amid CIJA’s archive of Syrian regime documents. Stringer/AFP via Getty Images

When the Syrian uprising began in March 2011, few envisioned that it would give way to a decade-long conflagration marked by some of the most heinous crimes witnessed in any conflict since the Second World War. Fewer still would have imagined that a measure of justice for these crimes would be found only in 2021 in a courtroom in the provincial German city of Koblenz. Nestled on the banks of the Rhine River, Koblenz has found itself at the centre of international criminal justice — pointing, in the process, to the uncertain future of war crimes prosecutions of Syrian perpetrators.

On February 24, the Higher Regional Court of Koblenz sentenced Eyad al-Gharib to four and a half years in prison for crimes against humanity committed during 2011 and 2012. Prior to his defection in 2013, Sergeant Gharib was a member of Syrian state security and, in the greater scheme of things, a nobody. But on February 24, al-Gharib became the first Syrian security-intelligence official in history to be convicted of any offence by a properly constituted court of law. In this respect, al-Gharib is a potent symbol of the possibilities and limits of justice for the victims of the massive apparatus of repression which the Syrian state wields against its citizens. 

That it has taken this long to convict a Syrian intelligence member for any of the “core” international crimes — war crimes, crimes against humanity and genocide — is not for lack of evidence. The organisation that I lead, the Commission for International Justice and Accountability (CIJA), holds more than one million original pages of documentation generated by Syrian regime perpetrators. The CIJA has taken these materials from the war zone and made them available to a wide array of national and as international law enforcement, prosecutorial and human rights bodies.

Key inculpatory evidence introduced during the Koblenz proceedings, which remain ongoing with respect to a second, more high-ranking accused, came from the CIJA vaults. In November of last year, a senior CIJA staff member testified over two days regarding the widespread and systematic nature of the crimes perpetrated by members of Syrian security-intelligence organs, including the accused. Amongst the dozens of documents the CIJA provided to German prosecutors, one dated April 2011, mere weeks into what started as a series of peaceful demonstrations, noted “the time for tolerance is over.” This order, issued by a committee chaired personally by Syrian President Bashar al-Assad, marked the start of a continuing nightmare of repression for protesters and other innocents. 

In this and so many other respects, the brutality of the Syrian regime was entirely in keeping with that of its neighbour Iraq under the dictatorship of Saddam Hussein, another mass murderer and proponent of Ba’athism, a revolutionary and authoritarian political movement. In 2003, Saddam was overthrown. While the wisdom of that war remains highly contentious, nobody of sound mind would argue that Saddam was a force for good, most especially vis-à-vis the Iraqi people. In Syria, Assad has managed to cling to power, thanks entirely to Russian military support. In Syria, then, there is no prospect of regime change. The question is whether Assad and his government might be reintegrated politically into the community of nations. There are signs that some western states are prepared increasingly to tolerate such a rehabilitation.

The policy and indeed the moral challenge confronting policy makers who see wisdom in entreating with the Syrian government is its ongoing mass criminality. Germany, the United Kingdom and the United States continue to support the evidence collection efforts of the CIJA in Syria, where we still have roughly forty investigators deployed. Indeed, the CIJA is the only criminal investigative body in the world with the freedom of movement to undertake operations of this nature in high-risk environments such as Syria. The CIJA’s efforts, in Syria and elsewhere, are designed to kick-start international prosecutions. At the same time, the CIJA supports national war crimes programs with a mandate to prosecute perpetrators who find their way westwards, invariably under the cover of refugee status. Federal police and prosecutors in Canada are engaged in efforts of this kind, with CIJA support where they need it.

“Few western states believe there is any prospect of meaningful justice for victims of the Syrian regime’s crimes.”

The dwindling number of donors willing to invest in ongoing criminal investigations to keep the question of accountability on the diplomatic agenda may well reflect the fact that few western states believe there is any prospect of meaningful justice for victims of the Syrian regime’s crimes. Indeed, some have told the CIJA openly that they have “other priorities” in Syria. The conviction of al-Gharib ought to rebut such thinking, but diplomatic initiatives aimed at creating an international tribunal to address crimes committed in the Syrian war were abandoned several years ago. This failure reflects the decline of the multilateral approach to international criminal justice — of which Canada remains indisputably a champion — that has enabled the prosecution of so many war criminals from other conflicts, including the Second World War.  

* * *

Seventy-five years ago, at Nuremberg, the trials of the senior-most Nazi leaders by an international tribunal initiated the modern era of international criminal justice. In 1945, there was near-universal agreement that individuals must be held accountable in courts of law for crimes which offend the conscience of mankind. The Syrian war and the international-domestic response to it demonstrate that this consensus has collapsed.

The promise realised at Nuremberg was interrupted by the Cold War. However, the eventual triumph of multilateral institutions over Cold War cynicism breathed new life into the moral power of international law to confront mass atrocities. In 1993, the establishment of the Yugoslavia Tribunal by the United Nations Security Council marked the start of the modern era of international war crimes prosecutions.  Thereafter, still more international courts and tribunals were established around the world, with the permanent International Criminal Court (ICC) opening in 2003.

Unhappily, the war in Syria highlights the deterioration of multilateralism and international criminal justice. In particular, diplomatic efforts to establish an international tribunal for Syria, or otherwise to refer the Syria situation to the ICC, have long been stymied by political-diplomatic gridlock reminiscent of the Cold War. Most infamously, in 2014 Russia and China vetoed a UN Security Council resolution, supported by Canada and a great many other democratic states, to have the ICC take up the cause of justice for Syrians. For this and other reasons, Syrian war criminals remain untroubled by international prosecutors.

In 2016, a handful of savvy diplomats did successfully push for the creation of a criminal investigative “mechanism” for Syria, operating under United Nations auspices. The thinking behind the creation of this body was that the mechanism would collate, verify and analyse evidence which the CIJA and others collected, while generating momentum for the establishment of an international tribunal. However, the UN body would not and does not have prosecutorial powers. Notwithstanding these limitations on the authority of the mechanism, Damascus, Moscow, Tehran and their allies continue to oppose bitterly this institution, which has no access to Syrian territory, such that this international institution has arguably failed to reach even the modest potential envisioned by its creators.

Secure in their sense of impunity, those running the Syrian regime’s machinery of death continue to operate undisturbed, giving rise to the most gruesome images seen since Nuremberg.  Hundreds of cruel servants of the Assad government, not least former generals, have found refuge in third countries. Last year alone, the CIJA answered formal requests from authorities in 12 countries concerning 745 Syrian suspects — regime and Islamic State adherents — known to be present in Europe and North America. The highest ranking CIJA target, Brigadier Khaled al-Halabi, a former provincial chief of Syrian state security, resides untroubled in Vienna, notwithstanding the CIJA delivering an extensive dossier of highly incriminating evidence to Austrian authorities in 2016.  The likes of al-Halabi would surely be indicted by an international tribunal for Syria, were one in existence. 

In the absence of an international tribunal to hold individuals accountable for crimes committed in Syria, it falls to national police and prosecutors to pursue justice. These authorities base their efforts on universal jurisdiction — a legal principle which allows domestic legal systems to prosecute those who commit international crimes, regardless of where the crimes took place. Al-Gharib and his co-accused were brought to trial in Koblenz pursuant to this norm, first applied centuries ago to cases of maritime piracy. Universal jurisdiction is likewise well established in Canada and across the west.

In 1945, Germany was the involuntary host of the Nuremberg trials. Today, the prosecution of al-Gharib and others sees Germany at the forefront of our collective duty to reject impunity for atrocity crimes. German leadership in this regard deserves our admiration. Nonetheless, the tireless efforts of German officials and other national guardians of the Nuremberg inheritance, working for myriad law enforcement and prosecutorial bodies, are no substitute for an international tribunal. Unless the foreign ministry colleagues of the hardworking police and prosecutors across Europe and North America join with this effort, by pushing for an international tribunal to deal with the Syrian war, the vast majority of the most egregious Syrian perpetrators will continue to evade justice.

If there is to be any future for international criminal justice, a multilateral approach to the criminal justice challenge created by the Syrian war is necessary. Canada may wish to exercise leadership in this regard; to do so would most certainly be consistent with long-standing Canadian policy in matters of international law, where Canada remains second to none. Without such leadership from Canada or one of its allies, it will continue to fall to national authorities and non-public organisations with a criminal investigative mandate, such as the CIJA, to stave off the complete collapse of the legal norms established at Nuremberg. Al-Gharib’s conviction vindicates the efforts being made by domestic authorities in Germany and elsewhere in the absence of an international tribunal for Syria. However, the future of even these efforts, given the world’s fading interest in pursuing justice for the suffering endured by the Syrian people, remains uncertain.

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