There are moments when the capacity for humans to commit mass atrocities against their fellow man seems overwhelming and utterly incomprehensible. The Syrian conflict, it would seem, is one of those dark moments in our history.
In just four years, approximately 220,000 people have been killed, almost all civilians. Between 2011 and 2013, a Syrian military police photographer referred to as ‘Caesar’, who defected from the Syrian regime, smuggled out more than 55,000 photographs that appear to depict the torture, starvation, and death of thousands of individuals, including women and children, held in regime detention centers.
In his passionate lecture at the University of NSW, the United States ambassador-at-large for war crimes issues, Stephen Rapp, chillingly described the 11,000 “men, women and children, their eyes gouged out, with the scream on their dead face, reflecting their final minutes. In many cases, bodies were photographed with a card bearing the number of the facility where each person was murdered .”
Described by the ambassador as the “most repressive regime outside of North Korea”, the Syrian conflict shows no signs of slowing down. The conflict is bloody and brutal, engaging several areas of international law.
The real question is: what can be done to achieve justice in such a fragmented legal system and during ongoing conflict? Can international law intervene to provide justice?
We spoke with the ambassador and attended the lecture to find out just how the international community might address the complex Syrian challenge.
How did it get to this?
Under Ba’ath Party rule since 1963, with Basharal-Assad as the current leader, Syria’s problems began with the suppression by the Assad regime of civilian demands for greater democracy.
As part of the ‘Arab Spring’, anti-government protests started in Syria early in 2011, leading to an armed conflict largely fought on a sectarian basis. The Syrian government responded with horrendous violence and targeted, in most cases, the moderate middle class.
And while the rise of terror groups such as ISIS has gripped the world’s attention with their propensity for cruel, inhumane acts, Rapp pointed out in his lecture that more than 80 per cent of the violence in Syria has been committed by the Assad regime against its own people.
Doctors and hospitals and medical facilities are targeted. More than 1300 people were killed in 2013 in a chemical attack. Barrel bombs laced with chlorine are regularly dropped on neighbourhoods (with 35 attacks since March). “Rules of proportionality and distinction are regularly ignored and violated by the government,” Rapp says.
“The crimes, in some ways, are worse than in other conflicts. Rules observed in other civil wars are violated on a regular basis in Syria.”
Even though the ambassador admits there is little prospect of justice right now, particularly given the daily violence and the veto by Russia and China of the draft UN Security Council Resolutions to refer Syria to the International Criminal Court (ICC), he has faith in the power of international law to bring the perpetrators to account.
“When I meet with the Syrians, six million of whom have now fled, I say with confidence that the day of justice will arrive.”
So what kinds of challenges do we face until that day arrives?
The challenges of achieving Syrian justice
After Nuremberg and the end of the Cold War, Rapp, then a state prosecutor in Iowa, was fascinated by the international tribunals set up to address war crimes – it seems he was destined to be part of the action.
“As a lawyer, I always admired what happened at Nuremberg. People were held to account for the Holocaust and evidence was presented. I became, essentially, the victim’s representative as the prosecutor at that time.”
Embarking on an impressive international career, Rapp went on to serve as the senior trial attorney and chief of prosecutions at the International Criminal Tribunal for Rwanda (2001-2007), and subsequently the prosecutor of the Special Court for Sierra Leone beginning in January 2007, renowned for leading the prosecutions and convicting former Liberian president Charles Taylor.
The ambassador assumed his current role in 2009, heading up the Office of Global Criminal Justice, giving him insight and a unique perspective on the Syrian challenges and retaining an unwavering belief in the power of international law despite the difficulties.
The primary Syrian challenges cited by the ambassador are:
- Unwillingness to see justice: Independent investigations blocked by Syria and ongoing, senseless violence.
- Capacity: The challenge the ICC faces in not presenting indictments but securing convictions, particularly in light of witness protection and witness-credibility issues.
- Connecting the dots: The “linkage” problem with evidence and documentation. You need to show the particular senior individuals were criminally responsible.
- Timing: It’s hard to know whether to pursue justice during ongoing conflict.
Admitting that the ICC would be powerful with more ratifications (including from the US), the ambassador confirmed that the ultimate challenge is trying to make sense of the unwillingness to see change and reaching the “author” of the crimes.
It is the Achilles heel of international justice; it is rarely disputed that thousands were killed but you’re ultimately putting “the organiser” not the “killer” on trial.
The Caesar photos: Connecting the dots
The existence of the Caesar photos showing, according to Rapp, crimes “comparable to the Nazis”, gives the ambassador hope that the “paper-crazy” Syrian regime itself will lead to successful future prosecutions.
“It has been possible for the opposition and others to recover more than 800,000 pages of documents ordering torture, setting up road blocks where civilians were killed and ordering military campaigns.”
The Caesar photos, which catalogue Syria’s grim civil war, make prosecution possible because many of the victims can be named. In addition to identification by relatives, the US Federal Bureau of Investigation is conducting a forensic analysis to confirm the authenticity of the photos.
The establishment of the Syria Justice and Accountability Centre and supported documentation efforts in Syria will help to implicate senior regime officials in these horrible crimes.
“There is no place yet to bring this evidence in terms of an international court, but an expectation is created by what we’ve done elsewhere, a demand by Syrians to have justice. We will be ready, more ready than we’ve ever been before.”
So what possible solutions can we pursue to overcome these challenges?
Overcoming the challenges: The ICC and global solutions
It is always preferable for national courts to prosecute crimes in their own country, but international courts and organisations are sometimes required to fill the gap at the national level in order to deal with violent crimes.
Some of the potential measures the ambassador discussed in his lecture that might assist in the Syrian situation are:
- Creating other places where justice can be effective, such as arranging national prosecutions in third states.
- The developing efforts by civil society to help build an unanswerable case by assisting in the documentation efforts.
- Threats of ICC prosecutions as a deterrent.
- Independent ICC examinations, such as those conducted in Afghanistan, Palestine, Georgia and the Ukraine.
- Working with groups in some areas of Syria to deliver state functions, including training judges outside of Syria and recording births and deaths (as the US is doing right now).
- Hybrid tribunals, which require agreement between the international court and country in question.
- Investigations conducted by the Human Rights Council in Geneva.
It is these global tools that the ambassador believes will ultimately help to achieve long-term justice in Syria.
There is no rest: Remembering crimes
The Syrian victims had names – they deserve more than a brutal death and numbers on a white card. And with six million people fleeing Syria, the consequences for the international community go beyond borders.
With the 100th anniversary of the Armenian Genocide just passed, the ambassador believes we need to remember these crimes whenever they’re committed. Trying these cases while people are still alive, even if the perpetrators are 80 or 90 years old (as in Cambodia), is critical to the international justice effort.
Ambassador Stephen Rapp concluded his lecture with an impassioned plea: “There is no rest in this life for those who murder innocent people and children […] If you intentionally murder people by the thousands based on who they are, there is no rest in this life.
“When these individuals are brought to trial, even 70 years after the crime, it sends a signal. We are sending a message. We do remember and there will be consequences. It’s about finding the evidence, building the case and making it unanswerable. That is the way that we can achieve justice where courts are not yet able and be ready for the day when they are.”