The indictment against Syrian President Bachar Al-Assad is finally ready. All that is missing is a court to try him. The Commission for International Justice and Accountability (CIJA), an organization set up at the beginning of the war and funded by the West, has produced three indictments against the régime, including Assad and his war cabinet, his security and intelligence services.
The accusations are based on a big, secret evidence-gathering operation in Syria. For two years Syrian investigators, guided by veteran professional investigators from international tribunals, have gathered nearly 500,000 pages of documents at the heart of the war. It is a unique undertaking. There are no testimonies such as human rights groups gather, but documents originating from the régime which show all levels in the chain of command. The investigations have been done with the aim of a future trial. But who will conduct a trial, how and where? The question is still subject to debate. While fighting in Syria still exacts a heavy death toll – 220,000 dead since the beginning of 2011 –, experts are working on what will happen after the war and the role of justice in the future transition.
In a report published in May, the Syrian NGO Justice and Accountability Center (SJAC) says it would prefer to wait. “Postponing justice is preferable to an inherently flawed process, even if it means waiting several years for Syrians to see justice for the atrocities they have suffered,” says SJAC. “A justice process that fails to meet the needs of victims and creates disillusionment with formal judicial processes will very likely damage long-term prospects for transitional justice in Syria.” The group wants, after the transition, a special court in Damascus, truth commissions and a reparations programme. But uncertainty about how long the war will last and what its outcome will be weigh heavily. In the meantime, none of the options currently on the table are really satisfactory.
Syria has not ratified the International Criminal Court treaty (Statute of Rome), so the ICC is powerless unless the situation is referred to it by the UN Security Council. An attempt was made in 2014 to do this, but it was doomed to failure from the start. After numerous revisions to a text proposed by France, the US finally came on board. But Russia, an ally of Syria, used its veto, as did China. The ICC could nevertheless act through the back door by prosecuting crimes committed by citizens of member states such as Tunisia, which has an estimated 2,400 fighters in the ranks of the so-called Islamic State. But, according to SJAC, the “investigation could have a negative impact on the justice process in Syria if those most culpable are perceived to remain immune from prosecution”. Moreover, in early April, ICC Prosecutor Fatou Bensouda ruled out an immediate investigation into the “Foreign Fighters”.
Some British and American experts have also worked on the creation of a hybrid tribunal. SJAC says the draft Statute for such a court “can provide a viable framework for a Syrian tribunal, but effective implementation would first require restoration of peace and a democratic transition”. For the moment, the Syrian government’s consent is necessary but impossible.
Whilst waiting for peace, SJAC thinks many suspected perpetrators could be prosecuted in different States under universal jurisdiction. It says such an option could “help maintain pressure internationally for broader accountability and prevent political rehabilitation of the highest-level perpetrators”.
This would ensure that the perpetrators of the crimes no longer have a role in Syria after the war. But the Commission warns against trials targeting only the opposition, rebel or terrorist groups. It warns that “the resulting convictions could support the already prevalent view that the West no longer cares about pursuing justice against Assad or his allies”.
A first trial has been conducted in Sweden of a rebel from the Free Syrian Army, who was sentenced to 5 years in jail.