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The Case for Referring Syria to the ICC

We look at what it will take to refer Assad’s government to the Hague, and the case being built around it at the U.N. Security Council.

Written by Katarina Montgomery Published on Read time Approx. 6 minutes

On Monday France circulated a draft resolution to the five permanent members of the U.N. Security Council, seeking to refer the situation in Syria to the International Criminal Court (ICC) in the Hague for prosecution of war crimes and other crimes against humanity.

Because Syria is not a state party to the Rome statute (which established the ICC), the court can only obtain jurisdiction to investigate if a referral is endorsed by all five members of the Security Council.

The Council’s previous attempts to refer Syria to the ICC have been met with public support by a significant portion of its members, and by Navi Pillay, the U.N.’s high commissioner for Human Rights. But similar referrals have been continuously blocked by Assad allies Russia and China.

France’s latest resolution condemns Syrian government officials and pro-government militias as well as non-State armed groups. The United States has lent its support, leading to speculation that the new resolution could lead towards breaking the Council’s deadlock.

The push comes after an informal Council meeting organized by France last month. There, member states viewed graphic photos that former war crimes prosecutors say are direct evidence of the brutal torture of detainees by Assad’s security forces from March 2011 to August 2013. The images were smuggled out of Syria by a former military police photographer who defected and was given the code name Caesar.

David Crane was the chief prosecutor at the ICC’s Sierra Leone war crimes tribunal that indicted former Liberian dictator Charles Taylor. He was also one one of three international lawyers who examined Caesar’s photos for authenticity. Here, he weighs in on the case for referring Syria to the ICC, and his work for the Syrian Accountability Project, an initiative documenting war crimes in the context of the Syrian conflict.

Syria Deeply: How is this draft resolution different from previous resolutions referring Syria to the ICC?

David Crane: After we showed a series of pictures we used to evaluate and issue our report, the president of France stood up and asked for questions, and the U.N. Security Council members fell silent from the shock of seeing the degree of abuse taking place in Syria.

This isn’t just a question of numbers. Scale can be an aggravating circumstance in court, but method and process is what gets people convicted.

France has taken the lead on pushing the issue of war crime referral at the Security Council. The key difference from previous resolutions is that this draft refers all sides to the ICC for crimes against war and crimes against humanity.

The theory is that Russia and China vetoed previous resolutions because it looked like the Security Council was just going after the Assad regime.

This resolution draws a political line that will push Russia in a corner, forcing it to clearly state where it stands on Syria. It will be hard for them to reason why, as members of the U.N. paradigm, they would veto a resolution that holds both sides accountable. The Russians will most likely exercise their veto power, but it will put them on the wrong side of history.

The U.S. and the rest of the Security Council will probably back the draft resolution; China will likely abstain from voting.

Syria Deeply: In Syria’s case, are their justice mechanisms and options to consider beyond the ICC?

Crane: If Russia continues to use the veto card, I have told the Security Council that we will have to look at other justice mechanisms beyond the ICC. We have been working on developing a statutory model called the Chautauqua Blueprint, a draft statute prepared by a panel of international judges, leading experts, and tribunal chief prosecutors which aims to provide a model for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes.

At this point, there are four possibilities of a justice mechanism: The first would be a Syrian domestic court that would try individuals for violations of civil law. Second is an internationalized domestic court that uses Syrian criminal law to prosecute, where international experts assist with prosecution. Third is a regional court that has bilateral or multilateral representation from regional countries, and the fourth option: the ICC. Over the course of the six months, we are going to see a move to establish one of these options, with the caveat that we have a situation where we will most likely have to accept that Assad will be re-elected.

Syria Deeply: What is the Caesar Report?

Crane: Caesar was a forensic photographer for the Syrian military police for 13 years. His job was to take pictures of bodies coming into a military hospital and marry them up with a number.

This numbering system was used to catalog corpses, as part of a report that kept track of which security service was responsible for ordering executions. As the war progressed, Caesar was aghast at the number of bodies coming in with torture marks. The bodies were coming in so fast they had to stack them up like cordwood in the parking lot.

He signaled to the resistance that he would be willing to make a copy of the photographs he was taking for the regime. From September 2011 to August 2013, he smuggled 54,000 photos on a memory stick in his shoe to his case officer and handler. The regime notified his family that he was killed trying to defect and held a funeral for him, but he was actually smuggled across the border to Jordan by antigovernment activists.

Syria Deeply: How did you assess the credibility of the evidence behind the Caesar Report? What are its conclusions?

Crane: We went in rather skeptically when we were asked to look at the credibility of the evidence and the witness. Over the first couple days, we had a very experienced forensic pathologist, anthropologist and an expert in digital imaging look at 6,000 of the 54,000 photos.

There were about four or five photographs of each of the 11,000 victims coming in from three detention facilities. As far as we know, there are several dozen detentions facilities throughout Syria.

We don’t usually get smoking guns, direct evidence and victim testimony. But in this case, we have documented reports and photographs that can directly prove that war crimes and crimes against humanity are being committed by the Assad regime.

You can’t fake the documented injuries and torture marks. This evidence would easily hold up in court; Caesar can identify the photo, number and his signature associated with the report detailing the deaths of 11,000 people.

Syria Deeply: How have you documented crimes being committed in Syria?

Crane: At the Syrian Accountability Project, we look at open source materials and catalogue that information relative to applicable bodies of law, including the Geneva Conventions, the Rome Statute and Syrian Penal Law.

We are Google mapping the conflict onto a physical map of Syria with an eye towards establishing the movements of individual armed units throughout Syria and numbers of related incidents and crimes.

We document incidents from both resistance and regime forces and every incident has to be verified by at least two sources. We are not able to document or charge for every incident, so we have developed a crimes-based matrix and major incident report, which is already 1,400 pages long, with about 25 incidents per page that document major crimes like rape, murder, terrorism, willful destruction of personal property.

As we began to build our crime-based matrix in the first year of conflict, we noticed that the majority of crimes were perpetrated by the Assad regime. Although the crimes of the Assad regime were far more egregious, the numbers began to change in the second and third year of conflict.

Both sides are tearing Syria apart, and caught in the middle are the Syrian people with women and girls paying a particularly heavy price. At this point, we are almost at a 50/50 split for crimes that can be called war crimes and crimes against humanity.

We have used this information to draft 15 sample indictments charging those individuals who bear the greatest responsibility with applicable violations of both International and Domestic Law. These indictments will give a future prosecutor an example of how to prosecute these crimes where applicable.

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