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Why is there no war crimes tribunal for Syria?

It’s an oddity of human history that the worst atrocities committed by men against their fellow men (and women) repeat themselves. Everyone agrees that intentionally killing civilians is wrong, and nobody rushes to defend genocide. But war crimes and crimes against humanity keep happening.


Just in my lifetime, genocides have occurred in Bangladesh, Cambodia, Burundi, Yugoslavia, Rwanda, and Iraq. And there have been too many ‘lesser’ war crimes committed during the same period to list.

But whether it’s ‘legally’ genocide or ‘merely’ war crimes, tens of thousands — millions of people in total — have lost their lives needlessly to whirlwinds of irrational rage directed by one group against another, often unarmed, group. It keeps happening.

War crimes are happening in Syria and Iraq right now.

The most recent major ad hoc war crimes prosecution entity, the International Criminal Tribunal on Yugoslavia (ICTY), provides an interesting compare-and-contrast model for considering what can (and cannot) be done in the case of Syria.

As with Syria, there were multiple warring parties in the Yugoslavia conflict. In Yugoslavia, no external state actors overtly participated in the conflict, as Russia and Iran are today in Syria (a belated NATO bombing campaign on Serbian positions finally brought an end to hostilities in 1995). As in Syria, civilians in Yugoslavia were often used as proxies for inflicting damage on opposing forces — for example, the siege of Sarajevo lasted nearly four years. Unlike in Yugoslavia, however, the combatants in Syria are not all state or quasi-state actors; several are organized international terrorist groups.

But perhaps the biggest difference between the two cases is that the ICTY was proposed almost as soon as the conflict in Yugoslavia began, in 1991. It was funded and formally set up soon thereafter. Meanwhile, Syria is fully six years into its civil war, and no serious plan to hold war criminals accountable for their actions appears to be on the horizon.

A particularly galling and ironic part of this humanitarian negligence is that America’s current Ambassador to the United Nations is an academic who built her reputation documenting the United States’ failure to respond to previous genocides. Samantha Power began her career as a journalist covering the war in Yugoslavia, and later wrote a book, appropriately called A Problem from Hell: America in the Age of Genocide, for which she received a Pulitzer Prize. She should understand the problem better than anybody, yet her tenure at the UN has been marked by feckless posturing and inaction. (Lee Smith at Tablet Magazine wrote a magisterial review of Power’s failures here.)

It appears that Power is either unable to forge consensus for stronger action on Syria within the UN, or she is simply prevented from doing so by those higher up in the administration and is being told to sit on her hands. The latter may in fact be true; according to Jeffrey Goldberg writing in the Atlantic, President Obama once cut Power off abruptly during an NSC meeting, saying, “Samantha, enough, I’ve already read your book.” Regardless, she remains at the UN, failing at her life’s work. It’s frankly astonishing that she hasn’t resigned in protest.

The UN’s own envoy to the country estimated in April that the total death toll in Syria so far is as many as 400,000 people. It’s not as if the international community is unaware of the scope of the problem.

Sadly, one of the greatest impediments to addressing war crimes underway in Syria and Iraq is the United Nations itself, or rather its membership rules. Any comprehensive accounting of war crimes in Syria and Iraq would necessarily include a review of decisions taken by the governments of Russia, Iran, Iraq and Syria. But as a permanent member of the Security Council, Russia has a veto. And because Russia is squarely — even defiantly — on the side of the Damascus and Tehran, Moscow is likely to veto any attempt to set up an ICTY-like organization that could potentially examine the actions of nation-states in this conflict.

But there should be hope for at least some type of response, even if only a partial one. It is a fact that the Islamic State (ISIS) has no constituency whatsoever in the UN. There is no party that would seriously argue against holding members of ISIS accountable for their innumerable murders of prisoners of war, non-combatants, and religious minorities, to say nothing of its intentional maiming of civilians and systematic sexual enslavement of women.

So while consensus for addressing the actions of Russia, Iran, Iraq, Syria, and even the notorious Hezbollah will probably remain elusive for the foreseeable future, there should be nothing to prevent the UN from setting up an ad hoc tribunal to prosecute war crimes and crimes against humanity committed by the so-called Islamic State. Several groups, including the UN, are already actively documenting these atrocities, and would undoubtedly welcome action.

What about the International Criminal Court? Couldn’t it prosecute war crimes in Syria? The short answer is: probably not. There are numerous problems with the ICC, not least of which is that neither Syria nor Iraq are parties to the ICC. Because of this, the court has essentially washed its hands of the issue, claiming lack of jurisdiction. In any case, the ICC has proved itself to be an impressively ineffective organization, spending more than a billion dollars during its 14 years of operation but securing only two convictions.

An independent tribunal following the ICTY model is the most workable approach to addressing the problem in the short term. In fact, a House Resolution (H. Con. Res. 121, by Chris Smith, R-NJ) calling for the establishment of just such an ad hoc tribunal passed by an overwhelming majority in March of this year.

But it never got a vote in the Senate. That’s a shame.

An ad hoc tribunal would be a far cry from a full and just response to the violence happening every day in Syria, but it would be a start. At a minimum, it would send a strong message to terrorist groups everywhere: the fog of war will not keep us from documenting your crimes and holding you accountable for your actions.

The author is a security consultant and former CIA operations officer who has worked extensively in the Balkans and the Middle East.

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