War Crimes+ in Syria and Iraq and the Possibility of an Ad Hoc Tribunal

By Courtney McCausland

The spring of 2011 began much like any other in the nation of Syria – rebellious teenagers painted some graffiti on a school wall and were arrested.[1] But that spring didn’t end like any other; by the summer of 2011 the country had erupted in anti-government protests against the regime of President Assad and within a year it had descended into a vicious civil war.[2] In the wake of this collapse various opposition forces, including the Islamic State, began to take advantage of the chaos and the following months saw the violence spread throughout the region, particularly into Iraq.[3]

As the conflict continued to rage, reports began to emerge of widespread attacks on civilians and other “soft targets,” including hospitals and aid organizations.[4] Other atrocities reported included the use of civilians as human shields, chemical warfare tactics, mass executions, and mass sexual enslavement.[5] The United Nations Human Rights Council has even established an Independent International Commission of Inquiry “to investigate all alleged violations of international human rights law since March 2011 in the Syrian Arab Republic.”[6] Accusations have been made against both the Syrian government Assad regime and oppositional factions in this conflict.[7] However, what makes this situation unique is that “the combatants . . . are not all state or quasi-state actors; several are organized international terrorist groups.”[8] But no matter the actor, targeting civilians is universally acknowledged as a crime under the laws of armed conflict.[9]

As a result of the domestic presence of both state and non-state actors, and interventions by various international actors, scholars continue to debate whether this conflict should be qualified as a domestic or international conflict.[10] This is particularly relevant because such a classification determines which laws of armed conflict are implicated.[11] While both Syria[12] and Iraq[13] have ratified the 1949 Geneva Conventions and the first Additional Protocol (which governs international conflicts),[14] neither country has signed or ratified the second Additional Protocol[15] (which governs non-international conflicts).[16] Should the conflict(s) in Syria and Iraq be classified as domestic in each respective state, certain protections that exist under the laws of international armed conflict would not be extended in this case.

There have been calls to refer the cases arising from this conflict to the International Criminal Court,[17] however neither Syria nor Iraq are parties to the Rome Statute – the treaty that created the court and established its jurisdiction.[18] Even in the unlikely event that a defendant in this case’s state of nationality granted consensual jurisdiction,[19] political opposition from China and Russia make such a referral unlikely.[20] In light of these facts, an ad hoc tribunal modeled after the International Criminal Tribunals for the Former Yugoslavia and Rwanda may be the most politically expedient and practically efficient solution.[21] A tribunal crafted in such a way would allow for broader scope of prosecution[22] and, like its predecessors, be tailored to the unique circumstances of this conflict.[23] The idea of a special tribunal has gained enough traction that in 2013 a group of academics and legal practitioners convened to draft a blueprint for the statute of such a tribunal. [24] This model is not without its critics, however, and any such entity would have much to learn from the shortcomings of the tribunals that have come before it.[25]

While the conflict in Syria and Iraq continues to rage, the international legal community has an imperative to start assessing the means by which we may respond when the dust has settled. The pervasive atrocities that continue to be committed have been attributed to both governmental and oppositional factions; this, combined with the presence of various international actors has created the conditions for a conflict that resists classification. But whether the conflict is ultimately found to be domestic or international, the law remains clear: civilians may never be targeted under the laws of armed conflict, no matter the party. Finally, an ad hoc tribunal appears to be a viable solution for holding war criminals in Syria and Iraq responsible for the destruction they have wrought.

* * * * *

[1] Lucy Rodgers, et al., Syria: The Story of the Conflict, BBC (March 11, 2016), http://www.bbc.com/news/world-middle-east-26116868.

[2] Id.

[3] Id.

[4] Roy Gutman, In Recent Months, ISIS Targeted Hospitals, Doctors, Journalists, PBS Frontline (Feb. 11, 2014), http://www.pbs.org/wgbh/frontline/article/in-recent-months-isis-targeted-hospitals-doctors-journalists/.

[5] Ahmed Rasheed & Michael Georgy, Islamic State Said to Use Human Shields as Coalition Advances on Mosul, Reuters (Oct. 18, 2016 6:53 PM), http://www.reuters.com/article/us-mideast-crisis-iraq-idUSKCN12I17X; Fazel Hawramy & Emma Graham-Harrison, Islamic State Using Hostages as Human Shields in Mosul – UN, The Guardian (Oct. 28, 2016), https://www.theguardian.com/world/2016/oct/28/islamic-state-uses-hostages-as-human-shields-mosul-says-un; Loveday Morris, Islamic State Militants are Kidnapping Thousands of People to Use as Human Shields, Washington Post (Oct. 27, 2016), https://www.washingtonpost.com/world/islamic-state-militants-are-kidnapping-thousands-of-people-to-use-as-human-shields/2016/10/27/797c6ee0-9c4a-11e6-b552-b1f85e484086_story.html; Richard Spencer, Isil Carried out Massacres and Mass Sexual Enslavement of Yazidis, UN Confirms, The Telegraph (Oct. 14, 2016), http://www.telegraph.co.uk/news/worldnews/islamic-state/11160906/Isil-carried-out-massacres-and-mass-sexual-enslavement-of-Yazidis-UN-confirms.html.

[6] About the Commission of Inquiry, United Nations Human Rights Office of the High Commissioner, http://www.ohchr.org/EN/HRBodies/HRC/IICISyria/Pages/AboutCoI.aspx (last accessed Nov. 9, 2016).

[7] Julian Borger, Call for Special Tribunal to Investigate War Crimes and Mass Atrocities in Syria, The Guardian (March 17, 2015), https://www.theguardian.com/world/2015/mar/17/call-for-special-tribunal-to-investigate-war-crimes-and-mass-atrocities-in-syria.

[8] Marc C. Johnson, Why is There No War Crimes Tribunal for Syria?, Bus. Insider (Aug. 17, 2016 3:53 PM), http://www.businessinsider.com/why-is-there-no-war-crimes-tribunal-for-syria-2016-8.

[9] Rules of War (In a Nutshell), ICRC (Aug. 22, 2014), https://www.icrc.org/en/document/rules-war-nutshell.

[10] James G. Stewart, How Would War Crimes Prosecutors Classify the Syrian Conflict(s)?, Blog (Oct. 20, 2016), http://jamesgstewart.com/how-would-war-crimes-prosecutors-classify-the-syrian-conflicts/.

[11] See The Geneva Conventions of 1949 and Their Additional Protocols, International Committee of the Red Cross [hereinafter ICRC] (Jan. 1, 2014), https://www.icrc.org/en/document/geneva-conventions-1949-additional-protocols [hereinafter The Geneva Conventions].

[12] Treaties, States Parties and Commentaries: Syrian Arab Republic, ICRC, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=SY&nv=4 (last visited Nov. 9, 2016) [hereinafter Syrian Arab Republic].

[13] Treaties, States Parties and Commentaries: Iraq, ICRC (last visited Nov. 9, 2016), https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=IQ [hereinafter Iraq].

[14] The Geneva Conventions, supra note 7.

[15] Syrian Arab Republic, supra note 8; Iraq, supra note 9.

[16] The Geneva Conventions, supra note 7.

[17] See Syria: Criminal Justice for Serious Crimes Under International Law, Human Rights Watch (Dec. 2013), https://www.hrw.org/sites/default/files/related_material/HRW%20Syria%20Justice%20Briefing%20Paper_0.pdf.

[18] Rome Statute of the International Criminal Court, 17 July, 1998, ICRC, https://www.icrc.org/ihl/INTRO/585?OpenDocument (last accessed Nov. 9, 2016).

[19] Madeline Morris, The Jurisdiction of the International Criminal Court Over Nationals of Non-Party States, 6 ILSA J. Int’l & Comp. L. 363, 363 (2000).

[20] Marc C. Johnson, Why is There No War Crimes Tribunal for Syria?, Bus. Insider (Aug. 17, 2016 3:53 PM), http://www.businessinsider.com/why-is-there-no-war-crimes-tribunal-for-syria-2016-8.

[21] See Id.

[22] As opposed to the International Criminal Court, which has historically only prosecuted the highest level offenders. Julian Borger, Call for Special Tribunal to Investigate War Crimes and Mass Atrocities in Syria, The Guardian (March 17, 2015), https://www.theguardian.com/world/2015/mar/17/call-for-special-tribunal-to-investigate-war-crimes-and-mass-atrocities-in-syria.

[23] Id.

[24] The Chautauqua Blueprint for a Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes, Pub. Int’l Law & Policy Grp. (2014), http://publicinternationallawandpolicygroup.org/wp-content/uploads/2014/01/Chautauqua-Blueprint-2014.pdf.

[25] Human Rights Watch, supra note 17, at 9.