Q&A: The absence of a tribunal in Syria is a blow to international law

The war in Syria has killed at least 400,000 people and displaced at least six million. From the Russian backed pro-Assad forces to the Free Syrian Army (FSA), almost every fighting faction is accused of having committed war crimes.

The list of alleged atrocities is long: the killing of 440 civilians, including 90 children, in Aleppo allegedly by Russian bombing between September 19 and October 18 this year; the FSA rebels allegedly gunning down 190 civilians in October 2013; and Iran-backed Shia militias executing civilians in broad daylight in December this year.

Dapo Akande is a law professor at Oxford University in the UK who's been part of several international criminal tribunals. He spoke to TRT World about the importance of war crime tribunals, saying that the lack of commitment shown by the global powers to hold war criminals accountable is undermining the credibility of international human rights law.

What elements do you think constitute a war crime [in Syria]?

DAPO AKANDE: Well, I mean with those numbers [of people killed in Syria], I imagine the number of war crimes are quite huge. You know basic war crimes are intentional targeting of civilians, that is really the main thing in Syria. All sides of the conflict are killing people who are either civilians, or detained and not fighting any longer. There are allegations of intentional use of barrel bombs [by Russia and pro-Assad forces] against civilians. There are allegations against ISIS [Daesh] and other rebel groups as well. There is clear evidence that they have killed innocent people [and there are] allegations of genocide.

Can you think of any recent examples of a war crime tribunal that is relevant to Syria?

DA: I mean you have war crimes trial set up in the context of former Yugoslavia in the 1990s. Of course if you go back even beyond that, you would see [the] Nuremberg war crimes trials after World War II, which was about what happened in Europe during the war. The Tokyo War Crimes Trials were dealing with Japanese war crimes, which were committed in World War II. More recently, you have the International Criminal Court (ICC) that has been looking at war crimes in the context of a number of conflicts in Africa. For example, a war is going on in the Democratic Republic of Congo, and the ICC is investigating war crimes there.

What's stopping the United Nations from setting up an international criminal tribunal for Syria?

DA: Well, the Syrian situation is complicated. Yes, you have the ICC, but it does not have a jurisdiction over Syria because the country is not a party to the treaty which set up the ICC at the first place. The ICC can only investigate the cases where states concerned are a party to the treaty. Now, the United Nations Security Council can either refer the case — the situation in Syria — to the ICC or could set up an independent war crimes tribunal. But of course the Syrian conflict has been complicated with international politics. In order to refer the case of Syria to the ICC, all the five permanent members of the Security Council [the US, the UK, Russia, China, France] should have to agree on this. And of course they are not agreeing on that. An attempt regarding to refer the Syrian situation to the ICC has been made a couple years ago and it was turned back by Russia and China. That's the complication we have on this case.

Is there any other way to move forward on that?

DA: At this stage and time, it will be difficult to see any agreement to refer the Syrian situation to the ICC because the matter has become even more complicated. Now some permanent members of the Security Council — the US, Russia and France — have forces in Syria which have been operating there with clashing interests, which means the ICC will have jurisdiction over actions committed by the armed forces of those countries in Syria. That's the first complication.

The second complication is that these countries are attempting to hold peace talks and a ceasefire in the country. It is likely that a proposal to refer the Syrian situation to the ICC will be seen as complicating a potential peace deal.

Perhaps after the conflict is over, you might see some progress on this issue, but at the moment I think it is quite unlikely.

What's the relevance and importance of these international war crimes tribunals for humanity?

DA: I suppose there are a number of goals that the international community try to achieve through these international tribunals. One of them of course is to achieve a measure of justice for the victims. So the victims see that they are wronged and those wrongs are recognised, and that the people who committed those wrongs are eventually punished. And possibly to achieve some degree of deterrent for those who might potentially commit these crimes, so that they know there is some punishment, and hopefully at least some people will be deprived from committing those crimes in the future. In that sense, just ensuring that there is no impunity for those criminal acts, and it is not the case that people do the things and get away with that.

As a law expert who has worked for some of the tribunals, have you seen a sense of justice prevailing among victims after their cases were taken up?

DA: Yes, in many cases. More recently there has been widespread victim participation. The victims of war crimes do want some sense of acknowledgement, that wrongs have been committed against them. They do want to see that people are held accountable for violations that have occurred. It helps societies to rebuild themselves.

Do you think tribunals recognise a crime objectively, or it is driven by a certain type of politics?

[Note: In the recent past the ICC faced accusations of being selective in penalising the leaders of certain states, while ignoring the crimes committed by global powers, such as the US, UK and France].

DA: I think it's always a bit of both. One thing about the process of a trial and prosecution is that it ought to be more objective than just general political discourse, because the evidence is presented in court. You have an independent person who assesses a group of people, who examines facts, who looks at the documents and recordings. I think there is a certain kind of politics that is present and I think you can never quite remove that even in the minds of the people, the society where these crimes have occurred. They will always be feeling that there is a political underpinning to what's going on. But at least more generally we have an objective process by which we can set the facts. And people who are disputing the facts have an opportunity to present their evidence to both parties, and then you have some independent process and person that can actually make that determination.

Do you think as an expert that that's something you have to struggle with; to fight for? Is there a lot of struggle to get these crimes documented?

DA: I think it is a constant and permanent struggle. I think in terms of building the rule of law and ensuring accountability, it is a permanent struggle. What we see in international society today is nearly closer to what we see in domestic society.

[NOTE: National law enforcement agencies that are well-funded by the state governments are in a better position to implement laws as supposed to international tribunal or courts that often struggle due to lack of resources and political challenges.]

Even [at the national level], building the rule of law did not come overnight. In most countries, it is not completely established and completely firm. You just have to keep watching and you have to ensure that you are making progress. That's what we are doing for international law and international criminal justice by trying to build a better system all the time.

Going back to your question about the public perception of international criminal justice system, that's also a constant struggle. The fact that people constantly view the system as part of some kind of political agenda, and the fact that some people will try to abuse it for some political agenda are things I don't think we can eliminate. We can just keep working to make the system work better.

Do you think the tribunals are able to present themselves as credible institutions in the current world order?

DA: There is a credibility crisis. International tribunals are part of the kind of architecture of the world order, they are part of the institutions we have to try to maintain order. There is a credibility crisis and it will [remain] for quite sometime, but it is part of the larger and constant struggle of trying to work harder and building establishments of those institutions over time. We see it with the ICC. We have seen a number of African states in 2016 withdrawing their signatures from the ICC. We have seen Russia withdrawing its signature from the ICC in November.

[NOTE: In late October, South Africa, the Gambia and Burundi broke away from the ICC for different reasons. While Burundi accused the ICC of being a "western tool to target African governments," the Gambia said the court was involved in "persecution and humiliation of people of colour". And the South African government ignored, for over a year, the ICC's order to arrest Omar al Bashir, president of Sudan. In April 2016, the court pronounced Bashir guilty of organising war crimes and crimes against humanity in Sudan. As South Africa faced criticism for not abiding by the court ruling, President Jacob Zuma's government chose to withdraw from the ICC.]

So what is the source of the credibility crisis?

DA: I think the source is just the fact that international criminal law is there to hold those who are exercising some kind of power accountable, and that is not going to be easily achieved because there will be backlash from those who are in power and who don't want to be held accountable.

What are the significant backlashes the tribunals have faced?

DA: The main crisis that the ICC has faced is related to African states, and the origin of that crisis actually relates to when the ICC indicted a couple of sitting heads of the states, in particular when the ICC indicted the President of Sudan Omar al Bashir. At that point a number of African states started to complain that the ICC was just targeting an African leader. Then later on in Kenya, when the former president was also indicted by the ICC. [NOTE: The ICC charged Kenyan President Uhuru Kenyatta with orchestrating ethnic violence in the run up to the national elections in 2007. The court later dropped all the charges].

Were those indictments genuine?

DA: They were genuine. There were credible allegations that these leaders had committed crimes.

Why did it backfire then?

DA: The backlash came from the fact that many African states were not very happy, and in particular they were not happy that all the cases that had been prosecuted by the ICC came from Africa. There was an allegation of bias against the ICC, that it is targeting African states. And that culminated in 2016 with three countries — South Africa, Burundi and Gambia — issuing notices to withdraw from the treaty establishing the ICC. So that was the culmination of the crisis.

Despite all the odds, do you think there is a possibility of setting up a tribunal in Syria?

DA: While the conflict is going on, it is going to be difficult. There should be an agreement at the UN Security Council, or there should be an agreement among the warring parties itself. It all depends upon the politics. There can also be regional tribunals to investigate the allegations of barrel bombs being dropped on civilian areas, or intentional targeting of people based on certain sectarian identity. But the problem is that the country is in the middle of a civil war and local tribunals don't seem to be keen on taking up such cases. It is very challenging because then the question of the relationship between the pursuit of accountability and the pursuit of peace becomes a very big challenge — how do we try to do these two things at the same time.

Are these criticisms grounded?

DA: The leaders say that, why hasn't anything happened in Syria? why hasn't anything happened in Palestine? Why isn't the [former] US president [George W Bush], the [former] UK prime minister [Tony Blair], why aren't these people put on trial [over the invasion of Iraq]?

Even if it were true that there are other cases that ought to be investigated, that doesn't mean that you shouldn't have justice anywhere.

Is the ICC working toward changing the perception of having an inherent bias toward certain countries?

DA: The argument of the bias cannot be ignored. But what's important is working toward perfection, toward the perfect goal. I think the way in which the ICC is trying to change that perception is by expanding the range of investigations. At the moment, if you look at the ICC they have a preliminary investigation in Georgia, looking at the situation in Iraq, looking at the allegations of torture by the US forces in Afghanistan. It is important to remember that it has budgetary concerns. But they are slowly expanding and that's important.

(With research and transcribing by Murat Sofuoglu)