Exclusive: The United States’ Pursuit of Syrian War Criminals Goes Back to the Drawing Board

With Russia and China having blocked a U.N.-sanctioned investigation into Syria’s war crimes, the United States is exploring a range of options for prosecuting Syria’s mass murderers, including the possibility of establishing a tribunal in a neighboring country, according to diplomatic sources familiar with American thinking.

U.S. officials are still in the brainstorming phase of deliberations, and no government has yet agreed to host a Syria-related tribunal. Even if an agreement is struck, it could be years before a Syrian national could be brought before judges.

Still, people familiar with the matter say that the United States is already engaged in informal discussions with foreign governments over a plan to seek a mandate from the U.N. General Assembly to establish such a court, which would be comprised of Syrian, regional, and international judges, lawyers, and prosecutors. The two likeliest homes for the tribunal are Jordan and Turkey, these people said.

The plan currently under consideration is for the U.N. General Assembly to adopt a resolution inviting one of Syria’s neighbors, probably Jordan or Turkey, to work with the U.N. Secretary General to establish a so-called hybrid court, comprised of local, international, and Syrian prosecutors and judges. The court would be funded by voluntary contributions from governments that support the effort.

The tribunal initiative is the most ambitious, and novel, of a number of ideas under consideration by Washington and other capitals eager to find ways of targeting and eventually prosecuting potential Syrian war criminals. The United States, Britain, and Gulf nations like Saudi Arabia are also stepping up their efforts to collect evidence that could be used to prosecute Syrian perpetrators in foreign courts, including in the United States, for alleged crimes against American and other foreign nationals in Syria.

U.S. and European law enforcement officials, for example, are examining the so-called Caesar report — which contains a trove of more than 55,000 photographs of alleged Syrian torture victims — for evidence that could be used to prosecute perpetrators of the violence, especially if some of the victims turn out to be foreign nationals. The report — which was funded by Qatar and written by team that included two former U.N. war crimes prosecutors — is largely based on evidence supplied by a former Syrian military police photographer. Syria has denied the report’s findings, while the United States and France maintain the evidence is authentic.

"When the conflict shifts and perpetrators start to flee and hide, like in all past conflicts, some will end up here," Beth Van Schaak, a visiting scholar at Stanford’s Center for International Security and Cooperation and a former top lawyer in the State Department’s war crimes division, told Foreign Policy. "I know our law enforcement agencies are at the ready for the time when these individuals start to travel."

Syria’s civil war, which began after Syrian forces mounted a bloody crackdown on peaceful anti-government protesters more than four years ago, has killed more than 150,000 people and left 9 million more in need of international handouts. A U.N. Commission of Inquiry has concluded that Syrian government forces, as well as pro-government and anti-government militias, have engaged in mass crimes against civilians.

The current search for new avenues for prosecuting Syria’s war criminals is unfolding in response to Russia’s and China’s May 22 double veto of a U.S.- and French-backed resolution that would have authorized an investigation by the Hague-based International Criminal Court into mass crimes by the Syrian government and rebels.

Stephen Rapp, the U.S. ambassador-at-large for war crimes, declined to comment on specific U.S. proposals. But he told Foreign Policy the United States is committed to continuing to gather evidence of crimes in Syria and to ensuring that perpetrators are ultimately held accountable.

The Russian and Chinese veto, he said, "shouldn’t be viewed as a defeat for accountability." The international community, he said, should look beyond the International Criminal Court for "other accountability mechanisms to ensure justice is done. Despite this veto, we will continue to lay the groundwork for transitional justice."

U.S., European, and Arab officials are keen to keep the international community focused on the need to hold perpetrators of crimes accountable at a time when the U.N. Security Council will now turn its attention to negotiations over a new resolution aimed at addressing the immediate humanitarian needs of the Syrian people, placing the pursuit of justice on the back burner for the time being. "To be very honest, the main point" of floating a series of new options for war crimes courts is to the keep the issue "cooking," said one Western diplomat. But the official, who noted that a three-year-long effort to hold Syrians accountable for crimes has gone nowhere, was dubious about the prospect that any of the alternatives to the ICC, including a tribunal, would succeed.

The U.S. push for a new tribunal, meanwhile, has caused some friction among Washington’s European partners, who feel that creating a new court could weaken the International Criminal Court.

"From our perspective, the ICC has been created for this type of situation," Christian Wenaweser, Liechtenstein’s U.N. ambassador and a former president of the ICC’s member state organization, told a small group of reporters in mid-May. "Of course, you can set up a separate institution. We just don’t see the point of that…. It’s not a proposal that we favor."

Still, Wenaweser acknowledged that prospects for an ICC investigation are blocked for the time being. He said that he and others had "floated" the idea of the Syrian National Coalition — which a group of more than 100 governments, known as the Friends of Syria, have deemed the legitimate government of Syria — invoking a provision of the Rome Statute, the treaty establishing the ICC, that allows a state that has never joined the ICC to invite the ICC prosecutor to launch an investigation. But he said it was unlikely that the court would recognize the Syrian opposition as a state.

"The important thing is to keep up the momentum and keep pushing," he said, noting that "certainly, there is a market for follow-up in the General Assembly. The General Assembly has so far not expressed itself unequivocally on the question of an ICC referral."

But U.S. policymakers feel that the pursuit of an ICC investigation is a dead end, and that it’s time to think about creating something new.

In the 1990s, the U.N. Security Council established the first post-Cold War international war crime tribunals for Rwanda and the former Yugoslavia. But such tribunals have fallen out of favor because of the soaring costs of administering them. They are also impractical given that Russia and China are all but certain to veto any Security Council initiative to establish such a court.

There is precedent for establishing war crimes courts outside the Security Council. In 2002, U.N. lawyers helped set up the first "hybrid court" in Sierra Leone — administered by Sierra Leonean and international lawyers and judges — to try perpetrators of attacks on civilians and U.N. peacekeepers during the country’s 11-year-long civil war. In June 2003, the Cambodian government and th

e United Nations reached agreement on the establishment of a mixed court in Cambodia to try surviving Khmer Rouge leaders for the mass killing of Cambodians in the country’s "killing fields." The U.N. General Assembly endorsed the deal. And in 2007, the U.N. negotiated an agreement to prosecute perpetrators of the Valentine’s Day murder of Rafik Hariri, a former Lebanese prime minister. In each of those cases, the tribunals were established with the agreement of the governments where the vast majority of the crimes occurred.

Syrian President Bashar al-Assad’s government is unlikely to permit a wide-ranging investigation into war crimes in Syria. If the U.N. General Assembly were to establish such a tribunal, it would mark the first time the 193-member body had created that type of court without the consent of the country where the crimes occurred.

Van Schaak said such a court would be entering unchartered waters, but that there is an extensive body of international law — including the concept of universal jurisdiction, which allows for the prosecution outside of a country of some of the worst crimes — that provides a legal underpinning for prosecuting Syrian crimes outside of Syria. "In the absence of a compliant host state, a group of concerned states could, conceivably, create a hybrid tribunal outside of the United Nations framework that could be empowered to exercise international jurisdiction or even a delegated form of domestic jurisdiction," she wrote in a blog post that outlined various options for prosecuting Syria’s war criminals. "The conflict in Syria has impacted upon Turkey, Lebanon, and Jordan in particular, who might have grounds to invoke protective jurisdiction given the acute destabilization created by waves of refugees across their borders."