International Criminal Law in the Service of Syrian War Victims would be a more accurate title for this substantial and challenging book that lays out in detail the various possibilities of employing criminal justice to provide recourse and remedy to victims of war in this tragic Middle East country. The cover of this intriguing book is adorned in the colors of the flag used by the Syrian Coalition and interim government (green, white, and black, with three red stars), founded in Doha, Qatar, in 2012, and recognized by thirty-two countries. The cover is copied from a mural by Amos Gregory gracing the wall of a school for Syrian refugee children in Turkey. Inspiringly, the flag is in the form of a butterfly and bears the words “Heal Syria.” Alas, the butterfly is torn in the middle, symbolizing the suffering that armed struggle has brought upon Muslims, Christians, and others in this unfortunate land since the beginning of the civil war in 2011. This symbolism prepares the reader to the approach taken by the author.
Reflecting the idea that the quest for justice is inexorable, the author suggests that a suitable subtitle for the book could be Water Always Finds Its Way (p. 1). The book's title Imagining Justice for Syria elicited in me other possible scenarios. One could have imagined a discussion of peace initiatives: how to stop the murderous ten-year struggle; how to help the Syrian people achieve peace; how to organize the reconstruction of the destroyed infrastructures of the country; and/or how to facilitate the repatriation of Syrian refugees. I imagined the return to human dignity and normalcy to a tortured population, the reconciliation of adversaries, the rehabilitation of victims, the necessity of educating the population in mutual respect and empathy, and the possible role of the institutional churches, religions and philosophies in the spiritual reconstruction of the country. I imagined the role of the UN High Commissioner for Refugees, International Organization for Migration, World Bank, International Monetary Fund, World Health Organization, International Labour Organization, and UN Educational, Scientific and Cultural Organization (UNESCO) in coordinating the reconstruction. A sociological tour d'horizon over the different ethnic and religious groups in Syria would contextualize the legal analysis and help envisage a post-war democratic future, not predicated on “winner takes all.” Bearing in mind that the Syrian opposition has not succeeded in dislodging President Bashar al Assad, that he was re-elected in May 2021, controls 90 percent of the territory of Syria, and enjoys the support of Russia and Iran, it is not clear whether many of the proposals contained in Professor Van Schaack's book can materialize in the near future. Hence, it would appear that other stabilization policies must be realistically envisaged, since a post-Assad Syria is not likely to emerge soon, as there is no post-communist Cuba or post-Chavista Venezuela in sight. While continued UN monitoring is necessary and the practice of “naming and shaming” may eventually cajole states into improving the lives of all persons under their jurisdiction, advisory services and technical assistance by UN agencies are likely to bring faster results in assuaging some of the suffering of the victims.Footnote 1 An increasing body of scholarly literature on the Syrian war exists, which the author knows and does not duplicate.
The focus of this book is on the role that domestic and international courts can and should play in providing redress to victims of war crimes and crimes against humanity in the Syrian conflict. That focus came into view as I started reading it. I realized that every page of the book is infused with faith in the Nuremberg Principles, in the right to truth of the victims and their families, and in the necessity to know what happened to loved ones. Van Schaack explains how to employ the courts to judicially investigate, prosecute, and punish and how an ad hoc tribunal for Syria, modeled after the International Criminal Tribunal for the former Yugoslavia or the hybrid Sierra Leone tribunal, could be established. A table on page nine breaks down the options into international, hybrid/regional, and domestic tribunals with jurisdiction to prosecute individual perpetrators and impose state responsibility on sovereign states.
The book addresses the accountability gap, the importance of deterrence in international criminal law, and how to use the mechanisms of “transitional justice” to improve the lives of the traumatized survivors. The book is supported by thousands of footnotes with reference to primary and secondary sources, legal precedents, UN reports, UN General Assembly resolutions and decisions, discussions on the use and abuse of the veto power at the Security Council, and the concept of universal jurisdiction. Once we know what to expect, we can confidently dive into the eleven chapters sure to learn about the options and legal mechanisms from an expert who knows what she is talking about. The book continues the line of argument of an earlier master's thesis by Lt. Jakob Maddox, United States Navy, Building Peace in Post-Assad Syria,Footnote 2 and Van Schaack's 2016 article, “Mapping War Crimes in Syria,”Footnote 3 which documents how virtually every international crime has been committed in and around Syria by the Syrian government, terrorist organizations, ISIS, Al-Qaeda groups, opposition soldiers, mercenaries, and international land and air forces.
This book, aimed primarily at lawyers, raises multiple issues of international law, human rights law, international humanitarian law, and international criminal law that deserve extensive discussion by the profession, politicians, diplomats, civil servants, international civil servants, and civil society. The author, who currently serves as the U.S. State Department's Ambassador-at-Large for Global Criminal Justice, possesses extensive experience in the field and has devoted much attention to these issues. Prior to her current position, Van Schaack served as deputy to the ambassador-at-large for war crimes issues in the U.S. Department of State Office of Global Criminal Justice under Secretaries Hillary Clinton and John Kerry. She contributed to the formulation of U.S. policy on the prevention of and accountability for mass atrocities worldwide, including Syria. Prior to that she was with the International Criminal Tribunal for the former Yugoslavia Office of the Prosecutor. In addition, she has served as a visiting professor at Stanford Law School.
The book's introduction is titled “Syria's Challenge to the Promise of International Justice” (id.) and starts by quoting Kenneth Roth, director of Human Rights Watch: “Behind much of the savagery of modern history lies impunity.”Footnote 4 Indeed, there is a culture of impunity in our world, and many war crimes and crimes against humanity have gone unpunished since the Nuremberg trials. The credibility of the system is also at stake because it is obvious that not only the vanquished commit war crimes. The Geneva Red Cross Conventions list those offenses that qualify as “grave violations” and obliges states parties to investigate violations and prosecute their own soldiers and civilians. Hence, there is a need to strengthen the arm of military justice. International criminal tribunals remain in their infancy and their jurisdiction should only be complementary.
In Chapter 2, Van Schaack undertakes a brief history of the conflict, albeit in a rather one-dimensional way, following a narrative that is generally accepted in the West but challenged in numerous countries, where analysts focus not only on the crimes of the Assad regime but also on the involvement of foreign fighters, mercenaries, and private security companies.Footnote 5 The emergence of ISIS in April 2013 certainly complicated matters and prolonged the armed conflict. ISIS engaged in systematic criminality—not only against “infidels” but also against UNESCO World Heritage sites like Palmyra.Footnote 6
Chapter 3 focuses on the Security Council and international crimes in Syria. Van Schaack calls it a “study in dysfunction.” I fully agree with the author that the veto power should be exercised only in the rarest type of case, and the P5 should defer to the democratic majority of the Council (p. 53). Yet, the fact is that all P5 countries have overused the veto power. As of October 2020, the veto power had been used 283 times (the United States eighty-three, the USSR 107 and Russia an additional twenty-four, the UK thirty-two, France eighteen, China sixteen). On pages 118–19, the author presents a useful table of voting patterns and the exercise of the veto in the Security Council in connection with the conflict in Syria. Referral by the Security Council to the International Criminal Court (ICC), as proposed by UN High Commissioner for Human Rights Navi Pillay and her successor Zeid Raad al-Hussein (pp. 105–06) would fail because of the certain veto of Russia and China. When I presented my 2013 report to the General Assembly, outlining a number of implementable UN reforms, including how to phase out the veto practice,Footnote 7 the Russian delegate took the floor to defend the Russian use of the veto power with regard to Syria with express reference to the cavalier manner in which NATO countries extended Security Council Resolution 1973 concerning Libya and engaged in regime change instead of humanitarian assistance.
Chapter 4 looks in detail at the Rome Statute and a would-be referral to the ICC. The political negotiations are explained in a more lucid manner than this reviewer has previously seen. Van Schaack reviews the Nuremberg promise of individual criminal accountability and the options under Chapter VII of the UN Charter (p. 123). Back in 2014, France elaborated a draft for a referral resolution at the Security Council.Footnote 8 Unfortunately, the draft encompassed only crimes committed by the Syrian authorities and their associated militias, excluding ICC jurisdiction over any crimes committed by the United States and its coalition partners, Russia, Turkey, Iran, or any other outside forces. The United States, preoccupied with possible “politicized prosecutions,” articulated its perceived need to build protections for its personnel into Security Council resolutions, a campaign that generated controversial language (pp. 130–31). Exclusionary language was built into the evolving texts. The “exclusive jurisdiction” language already negotiated for Darfur in Sudan would mean that “nationals, current or former officials or personnel from a contributing State . . . shall be subject to the exclusive jurisdiction of that contributing State” (p. 137). While “[t]he United States has distinct domestic law imperatives that inform its insistence on these exclusive jurisdiction provisions, particularly when it comes to the United States’ participation in peacekeeping operations” (p. 141), such immunity provisions are mandated by the American Servicemembers’ Protection Act of 2002. The problem comes when servicemen are not prosecuted, or investigations are closed, resulting in impunity. This is a concern that many in the United Nations have voiced, e.g., in connection with the decision of U.S. Secretary of Defense Lloyd Austin not to prosecute anyone for civilian deaths resulting from the use of drones in Afghanistan. A particularly interesting facet is discussed under the “Article 98 agreements” section (p. 146). Pursuant to ninety-nine such agreements, states parties to the Rome Statute are prohibited from transferring or surrendering U.S. persons to the Court. At a future meeting of states parties to the Rome Statute, the Assembly of States Parties may want to consider whether these agreements are compatible with the “object and purpose” of the Rome Statute, which these ninety-nine states had ratified. With regard to Security Council resolutions, few authors can explain the drafting history as well as Professor Van Schaack, who understands the political maneuvering behind each amendment and compromise.
In Chapter 5, Van Schaack reviews prospects for justice before the ICC. She cites an inspiring quote from Robert Jackson, the U.S. chief prosecutor at Nuremberg: “Courts and tribunals . . . are the best instrumentalities that our civilization has yet devised to subdue violence by giving that which is rightful a forum where it may prevail over that which is merely strong” (p. 179). Because Syria is not a party to the Rome Statute, the ICC would only have jurisdiction over international crimes in the event that the Security Council effected a referral. In fact, Article 5 of the Rome Statute grants the Court jurisdiction with regard to only a portion of the type of international crimes committed in Syria. Of course, a new Syrian government could later ratify the Rome Treaty and give the Court prospective jurisdiction over Syrian territory, eventually with a retroactive temporal declaration made under Article 12(3) of the Statute, as has been done by the Palestinian Authority, Côte d'Ivoire, and Ukraine.
Chapter 6 reviews a “menu of models,” including options for an ad hoc tribunal for Syria. “Putting politics and practicality to the side, the international community could have established . . . an ad hoc tribunal dedicated to Syria, with or without the Security Council” (p. 212). Of course, if such a tribunal were to be established, the legality of its jurisdiction could be challenged by defense counsel. One could envisage such a tribunal only after a complete victory over Assad, which at present does not appear likely. Any tribunal would have abundant evidence of war crimes and could rely on the reports of the UN Commission of Inquiry on Syria. Drawing parallels with the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, which owed their existence to the Security Council, Van Schaack raises the possibility of a “hybrid” tribunal, as in Sierra Leone and Cambodia, created by way of an agreement between the UN and the target state (p. 220). Far more interesting is the possible role that the General Assembly (GA) could play, with reference to the Human Rights Council, itself a subsidiary body of the General Assembly. She refers to the GA's “Uniting for Peace” Resolution, adopted by member states (fifty-two votes in favor, five against, two abstentions) at the initiative of the United States in the early months of the Korean War, laying the groundwork for UN operations in Korea.Footnote 9 She suggests the utility of Resolution 377 in establishing justice mechanisms. The Arab League could also take an initiative in this direction (p. 233), with guidance from the experience of the Extraordinary African Chamber established to prosecute Hissène Habré for crimes committed while he was president of Chad. In entering into the arrangement, the African Union asked Senegal to prosecute Habré “on behalf of Africa” (p. 234).Footnote 10 She also looks at the Lockerbie precedent (pp. 247–48). Van Schaack recognizes that diplomatic support would be necessary for any of the models.
Chapter 7 addresses Syrian cases before domestic courts. She quotes Mohammad Hadi Zakerhossein's article in the International Criminal Law Review stating that “[s]elective justice is better than no justice” (p. 265).Footnote 11 This claim, however, would be challenged by many who believe that international law is by definition universal and should not apply double standards by allowing impunity for some while prosecuting others. Ultimately, it is a question of credibility. The ability of domestic courts to adjudicate international crimes depends on a legal framework with respect to both jurisdiction and substantive law. A number of domestic trials involving events and actors in Syria are underway. With respect to terrorist acts, e.g., by ISIL, states are under a UN Charter-based duty to address the phenomenon of foreign terrorist fighters by virtue of Security Council Resolution 2178 of September 24, 2014, and many states have indeed enacted expansive legislation enhancing their ability to prosecute participation in acts of terrorism. In this context, the reports of the UN rapporteur on the promotion of human rights while countering terrorism will prove helpful (p. 268). Van Schaack provides a partial inventory of the domestic cases emerging from the Syrian conflict (pp. 273–310).
Chapter 8 focuses on the utility of the law of tort in prosecuting crimes and abuses through civil suits. Although victims cannot be made whole through money reparations, it is important to demand state responsibility through the civil courts. In the United States, the Alien Tort Statute, the Torture Victim Protection Act, the Anti-Terrorism Act, and the Trafficking Victims Protection Reauthorization Act allow victims to bring civil claims in federal court to seek redress for international law violations. Van Schaack describes the application of the Foreign Sovereign Immunities Act (FSIA), which denies sovereign immunity in certain cases. The relevant exception reads:
A foreign state shall not be immune from the jurisdiction of courts of the United States . . . in any case . . . in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act. (P. 330.)
An FSIA case emerged in connection with the murder of journalist Steven Sotloff, who was captured in 2013 by ISIS and later beheaded. The FSIA was also used by the family for the killing of U.S. journalist Marie Colvin during the siege of Homs. The Center for Justice and Accountability, a human rights legal organization in San Francisco, with pro bono counsel Sherman & Serling, successfully brought suit against Syria under FSIA.
Chapter 9 deals with innovations in international criminal law documentation methodologies and institutions. Indeed, documentation keeps the issue of justice alive—not only in Syria, but everywhere. One of the most important aspects of the Nuremberg and Tokyo trials was precisely the enormous task of compiling evidence and sorting out millions of pages of Nazi and Japanese files, reports of the Reichssicherheitshauptamt (Reich Security Main Office), killing statistics of the Einsazgruppen (Schutzstaffel paramilitary death squads), the minutes of secret conferences, etc. Courts should not rely on newspaper reports when there are abundant primary sources that will sustain a verdict. In this context, UN fact-finding missions and panels of experts are of enormous value. Satellite imagery and other intelligence will certainly help criminal tribunals whenever these become operational.
Chapter 10 deals, inter alia, with transitional justice and the role of truth and reconciliation commissions. With regard to the Sierra Leone Commission, one must agree with the assessment in the Commission's report:
Truth-telling without reparations could be perceived by the victims as an incomplete process in which they revealed their pain and suffering without any mechanism in place to deal with the consequences of that pain or to substantially alter the material circumstances of their lives. In that regard, the Commission concurs with the view expressed by the South African Truth and Reconciliation commission that without adequate reparation and rehabilitation measures, there can be no healing or reconciliation. (P. 424.)Footnote 12
In her conclusions, Professor Van Schaack writes about the expanded use of the doctrine of universal jurisdiction. Besides domestic trials about war crimes in Syria, there have been a number of trials in various countries, e.g., in Germany concerning ISIL's murder of Yazidis and the ongoing trial in Stockholm of former Iranian official Hamid Nouri, arrested in Sweden in 2019, for his alleged involvement in a 1988 massacre of some 30,000 Mujahedeens in Iran.Footnote 13 The executions took place pursuant to a fatwa signed by Ayatollah Khomeini.Footnote 14 In this regard, the reports of the late UN rapporteur on human rights in Iran, Asma Jahangir, and the current rapporteur, Javaid Rehman, would be enlightening.Footnote 15 Nouri was an assistant to the deputy prosecutor at the Gohardasht prison near Tehran, where executions took place. These domestic courts operating under local and universal jurisdiction are creating important criminal law precedents
While Van Schaack provides a comprehensive analysis of many legal issues raised by the Syria conflict, a future edition of the book could add a chapter on the jurisprudence of the International Court of Justice (ICJ), including the judgment in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua, many aspects of which are of relevance to the Syrian civil war context. Specifically, the Court addressed the legality of military intervention in civil wars, which is an old international law issue that has produced doctrine and many precedents. The ICJ in the Nicaragua case considered:
whether there might be indications of a practice illustrative of belief in a kind of general right for States to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State, whose cause appeared particularly worthy by reason of the political and moral values with which it was identified. For such a general right to come into existence would involve a fundamental modification of the customary law principle of non-intervention.Footnote 16
The ICJ held that this fundamental modification had not occurred and rejected the argument that customary international law had somehow changed the principle of non-intervention:
The Court therefore finds that no such general right of intervention, in support of an opposition within another State, exists in contemporary international law. The Court concludes that acts constituting a breach of the customary principle of non-intervention will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations.Footnote 17
Another mechanism that receives scant attention is Peoples Tribunals, which have advanced the cause of transitional justice. The precedent of the Bertrand Russell Peoples Tribunals, the Tribunal on the Armenian genocide with the participation of Professor Theo van Boven,Footnote 18 the Kuala Lumpur Tribunal counting Richard Falk among its judges,Footnote 19 the Lelio and Lisli Basso International Foundation,Footnote 20 established in Rome 1976 and host to several tribunals emerging from the third session of Russell Tribunal II on Latin America—subsequently the Permanent Peoples’ Tribunal—illustrate that this approach has considerable potential.
Further, a new edition of the book could expand on the discussion of the model of “Truth and Reconciliation Commission” followed in South Africa and some countries in Latin America, and rely on reports of the UN rapporteurs on the promotion of truth, justice, reparation, and guarantees of non-recurrence.Footnote 21
Beth Van Schaack has provided a valuable survey of various legal mechanisms available for bringing accountability to those involved in the war in Syria. Yet criminal law mechanisms do not—and should not—exhaust our understanding of justice. Justice involves more than visiting penalties, punishment, and sanctions on those who violate civil and criminal laws, particularly when, as is too often the case, the law responds only to the suffering of some victims, and punishment is selective. Overemphasizing criminal sanctions risks obscuring the fact that law has preventative, as well as curative, functions, and a more capacious understanding of law's multiple roles should encourage greater attention to law's role in promoting social justice, which in turn can help prevent the instability and injustices that fuel domestic and international conflicts.
