December 21st, 2012
11:16 AM ET

Syria war crime perpetrators could face justice in The Hague

By Jennifer Trahan, Special to CNN

Editor’s note: Jennifer Trahan is associate clinical professor at the Center for Global Affairs at the NYU School of Continuing and Professional Studies and chair of the American Branch of the International Law Association International Criminal Court Committee. The views expressed are her own.

With a death toll that has passed 40,000 and still climbing, there can be no doubt that the situation in Syria should end up before the International Criminal Court, which was established to try the worst cases of genocide, war crimes and crimes against humanity where national courts are unwilling or unable to act. The international community has been waiting for the U.N. Security Council to refer the situation to the Court, as the Council is permitted to do under the 1998 Rome Statute that established the Court. Unfortunately, the Council votes are not there.

But another path to the ICC is now emerging. When the al-Assad regime eventually falls, as looks increasingly likely, a new Syrian government will be able to ratify the Rome Statute. That will create jurisdiction over crimes committed in Syria.

How? A new Syrian government will be able to join the International Criminal Court and can take jurisdiction back to July 1, 2002 – the first date the court’s jurisdiction can start from. Thus, there is a clear path by which top-level perpetrators of the current crimes might find themselves facing justice in The Hague.

Justice in The Hague, however, would apply to all sides, meaning the actions of the opposition forces would also be covered.

It is too late to hope that the al-Assad government heeds calls to deter atrocities being committed by Syrian forces. But while large-scale crimes have clearly already occurred, use of chemical or biological weapons would raise criminality to a new level that would invite high level prosecutions. Use of such weapons could constitute both a war crime and, if targeted against civilians as part of a widespread or systematic attack that is committed pursuant to a plan or policy, a crime against humanity as well.

While the Security Council has marginalized itself in failing to systematically refer mass atrocities to the ICC (it referred the Libya situation after far fewer fatalities), it may not be needed for the creation of ICC jurisdiction over the Syrian situation.

Given the clear path that now exists, all actors in the conflict (if they weren’t doing so before) should now gauge their actions appropriately.

A new Syrian state would, of course, have the option to prosecute such crimes itself and not go to the ICC. Iraq tried Saddam Hussein before the Iraqi High Tribunal because Saddam’s crimes predated what the ICC’s jurisdiction would allow. But domestic court prosecutions have a very mixed track record in trying individuals for mass atrocities. The Iraqi prosecutions, for example, were hardly a success, verging on the vengeful in their failure to adhere to due process.

To risk any chance of a repeat of what happened in Iraq, the International Criminal Court looks like the clear way forward.

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Topics: Syria

soundoff (12 Responses)
  1. joe anon 1

    those going to the ICC will be americans, english, french, turks, saudis, qataris, jews.

    December 21, 2012 at 12:39 pm | Reply
    • Travis

      I agree, joe. We here in America have some of the biggest war criminals history who need to be prosecuted but won't. What I find most nauseating here is while they're taliking about prosecuting Syrian "war criminals", Barack Obama continues to order the wanton slaughter of defenseless people through the use of those ungodly drones and Apache helicoptors overseas day after day!

      December 22, 2012 at 2:04 pm | Reply
  2. marc

    As bad as it is, it's a drop in the bucket compared to how many we murdered by invading Iraq under the fabricated lies of WMD's etc. The US not going to the Hague over this makes this whole court a total joke.

    December 21, 2012 at 12:53 pm | Reply
    • Travis

      How so very true that rings, marc. Thank you.

      December 22, 2012 at 2:05 pm | Reply
  3. j. von hettlingen

    It's not certain, whether Assad himself and his male sibblings will survive the conflict and stand trial before the ICC in the Hague. They might as well kill themselves, before the rebels get them. Perhaps a couple of top brass within the regime could be captured. Whether they would be extradicted will be another question.

    December 23, 2012 at 8:27 am | Reply
  4. IRAN MUST END.......this evil must go

    all bisl shi tttttttttttttttttt they already killed 72000 civilians usa France uk NATO and UN are doing nothing..
    if that was Saddam IRAQ will be destroyed 3 time over.....cause NATO are cowered and afraid from Syria and Iran and dont want to take the terrorists like Hezbollah out cause usa can not sale weapons any more it is all about money oil and sale

    December 24, 2012 at 6:12 pm | Reply
    • Carlson

      Spoken like a true, brainless nincompoop Tea Partier! This ignorance above is truly beyond belief!!!

      December 25, 2012 at 7:51 am | Reply
  5. IRAN MUST END.......this evil must go

    bullll shi t

    December 24, 2012 at 6:12 pm | Reply

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