Draft Statute for Syria War Crimes Tribunal: A first commentary on a disappointing effort

Cross posted on Invisible College

Today, a prestigious group of experts publicly “unveiled” a draft statute for a Syrian Tribunal. The list of contributors is quite impressive, including leading scholars in the field (Scharf, Bassiouni, Schabas, Newton), former international Prosecutors (Crane, Desmond da Silva, Goldstone) and such prestigious personalities as David Scheffer (whose influence is obvious from the expression "atrocity crimes" in the proposed name of the tribunal) and Patricia Wild.

The text of the draft statute, including commentary, was made available to interested readers, and warrants some commentary of itself.

CAVEAT: It should be noted that the following commentary is based on a publicly available version of the text that is dated 27 August 2013. I have not been able to find any new version that might have been unveiled this morning. Should there be any new version which might include any changes relating to the points I discuss below, I’d be happy to amend my views accordingly.

• On the context of the setting up of the Tribunal

From a technical perspective, the draft statute seems to only consider and prefers the option of domestic enactment of the law (Introduction and footnote 1). This has been a debated issue for all hybrid tribunals, which have been set up through a diversity of mechanisms (Treaty for Sierra Leone, UN Territorial Administration regulations for East Timor and Kosovo, UNSC Resolution for Lebanon, Treaty and national legislation for Cambodia, Provisional authority then national law for Iraq). Technically, this should lead to different situations in terms of relationship with national authorities and application of international law, but generally, these issues have tended to be ignored by all hybrid courts in favor of a common “we’re just different” approach. The current draft is no different, as there seems to be no notable impact on the language used in discussing the tribunal framework, other than the suggestions to "import" domestic procedural provisions (see below).

More generally, the introduction to the draft statute illustrates the form of illusionary neutrality of some promoters of international criminal law by suggesting on the one hand that all sides of the conflict would be prosecuted, but suggesting that the tribunal would be set up “presumably following a change of regime”. This is problematic because it seems to suggest that international justice mechanisms are compatible with political transitions. I’m not entirely sure that is true, or at least believe that this assumption needs to be questioned. Calling for accountability on all sides of the conflict might be a nice slogan, but it then leads to the question of who will then be in charge, given the fact that there is probably no one in this kind of situation with clean hands? I raised the same question a few years ago on Ivory Coast and have since then gotten my answer: only one side of the conflict is effectively being prosecuted, whether in Ivory Coast or at the ICC. The same would undoubtedly happen here, to a more or less big extent.

This in turn raises the question of adopting a more comprehensive approach to justice and peace-building that does not impose pre-conceived models of international justice on a given situation, as suggested by Carsten Stahn over at EJIL Tallk!.

• On the relationship with the ICC

Discussions on the setting up of accountability mechanisms for Syria generally present things in a binary way. It’s either the ICC, or a special tribunal for Syria. Interestingly the draft statute considers that the two are not mutually exclusive. Indeed, in discussing the proposed personal jurisdiction of the tribunal, it mentions the fact that Syria could join the ICC and give retroactive jurisdiction to cover the civil war, but concludes that “the ICC traditionally takes jurisdiction over only a handful of highest level defendants, so there would still be a need for the Syria Tribunal to prosecute the next level of culpable civilian and military leaders” (footnote 4). 

This hypothetical scenario would be interesting in relation to how complementarity would work when a hybrid tribunal is involved, given that Article 17 only explicitly considers the situation where a “state” is exercising jurisdiction as a trigger for complementarity.

• On some procedural aspects of the proposed tribunal

There are a number of open questions in the draft statute on the procedural framework of the proposed tribunal, which revisit traditional debates of the past few years, such as the issue of whether defendants can represent themselves, whether victims should be allowed to participate, whether trials in absentia should be authorized and the existence of an investigative judge. These questions bring in a number of cross-cutting considerations, from the past practice of other international tribunals to the need to give due consideration to Syrian legal traditions.

I feel the suggested flexibility in this respect welcome. I personally think that trials in absentia if obviously not ideal, should be a judicial policy option and I appreciate the fact that the document very clearly acknowledges, even if not referring directly to the ICC, that victim participation has revealed itself to be a problem (footnote 18):

Allowing victims and their counsel to participate in trials may present a myriad of logistical and legal challenges for this new court. This is particularly true in an extremely volatile and dangerous environment as exists, and will continue to exist, in Syria. The focus for the new court should be on ensuring that victims have a meaningful and constructive way to address the court in the post-trial stage of the proceedings and obtain restitution when feasible. Further, defendants will potentially be deprived of the right to an expeditious trial when victims participate. The cases heard by the new court will be extraordinarily complex, necessitating lengthy trials. Victim participation lengthens the trials even further, often presenting repetitious questioning of witnesses and additional filings for the court to address and decide upon, and for the defense to spend time refuting. Regarding equality of arms, victim participation and the ability of victims “to lead and challenge evidence” can create procedural disadvantage for the defense. When victims have the ability to lead evidence, allocation of the burden of proof becomes murky and defendants have a greater burden to contend with all of the additional information presented against them by victim participants. Although Syria has civil party participation in its courts, for the reasons stated above, the experts believe that a different approach may be more desirable for this Tribunal. 

I perfectly agree with this statement and hope that any final statute would mirror this feeling. However, I wonder if, in prevision of a more than likely outcry from victim-orientied human rights organisations, the drafters should not have more explicitely laid out a detailed alternative where, even if victims could participate, the level and manner of such participation would be strictly delineated to avoid the ad hoc unpredictable approach at the ICC which ends up, in most cases, being detrimental to the rights of the defense.

• On the applicable law of the proposed tribunal

Before going into more detail, just a word on what I think is one of most disturbing comments in the draft statute (footnote 30):

The crimes in this Statute are defined as they are in the Rome Statute establishing the  International Criminal Court. The crimes in the Rome Statute are further defined in an  instrument known as the “Elements of Crimes,” on which the Syrian Delegation joined  consensus in Rome. According to Article 15 of the International Covenant on Civil and Political Rights, a treaty that Syria has ratified, international crimes are lawfully  punishable even where there is no domestic law criminalizing them at the time of their  commission. International crimes, including those defined in the Rome Statute, are not subject to the prohibition on ex post facto application of criminal law

I think the authors make a vastly exaggerated reading of Article 15 of the ICCPR which states that:

“2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”

For me, this provision was a kind of ex post facto saving clause for the Nuremberg trials and should be used with care. In this sense, this provision does not say that ex post facto application of international criminal law is never a problem, it just applies a more flexible (if debatable) definition of what does not constitute ex post facto criminalization. Second of all, it remains to be seen whether all crimes within the ICC statutes fall within the ambit of Article 15 of the ICCPR, which is far from clear.

More generally, I am always amazed at the carelessness with which some international criminal lawyers approach the fundamental issue of the principle of legality. I’ve argued against this elsewhere and think that there are in fact very few (if any) valid reasons to apply a less stringent approach to the principle of legality to international crimes and in international criminal courts than in any domestic system.

Moving on to the actual applicable law, on the face of it, there is nothing that notable in the draft statute, which seems to import definitions from the Rome Statute in relation to genocide, crimes against humanity and war crimes. One omission did strike me: in the provision on war crimes, the drafters did not reproduce Article 8(2)(f) of the Rome Statute on the minimum threshold of what constitutes an armed conflict as opposed to internal disturbances. This might not in fact make any difference in practice, as the judges of the tribunal would still be able to discuss this dimension, but I think it shows, once again, the ideological bias of the authors in trying to remove any obstacle for the march forward of ICL.

• On the modes of liability of the proposed tribunal

Nowhere is this ideological bias more apparent than in the modes of liability. Indeed, while the draft seems to mostly adopt the ICC modes of liability, there are a couple of notable differences.

First of all, the provision on aiding and abetting is changed from the ICC Statute. While the Rome Statute reads as follows (Article 25(3)(c)):

For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

The draft statute removes the “for the purpose of facilitating the commission of such a crime” part. There is a footnote that is very explicit on the reason for that:

This revision avoids the problem that has surfaced in recent ICTY cases, that have interpreted “for the purpose of facilitating the commission of such a crime” as a substantial restriction.

In other words, the drafters do not like Perisic, which they see as a “problem” and want to make sure that it does not have a future. Whatever one thinks of the “specific direction” question, I think this way of using the statute for a Syria tribunal to push forward ideological agendas is slightly dishonest. It is not for this group of individuals to decide what is a “problem”, nor do they actually explain why it is a problem. Modes of liability, by definition, set “substantial restrictions” on what kind of conduct leads to responsibility and what kind of conduct does not. This cannot be a reason in itself to change the wording of the Rome Statute on this point.  Finally, this is a live current debate in international criminal law today, which cannot be just brushed aside casually by removing words from a statute.

I also note that such "choice" does not extend to other modes of liability, despite strong discussions and debates. For example, Article 25(3)(a) of the Rome Statute, which was interpreted in a rather novel way by the judges to create the much contested new mode of "indirect co-perpretation", is imported without further commentary or clarification. This is probably due to the fact that it is not a "problem" because it expands individual responsibility, rather than create a "substantial restriction" on it...

The same holds true of the draft provision on superior responsibility, which removes the different mens rea thresholds contained in Article 28 of the Rome Statute between military commanders and civilian leaders. In essence, while at the ICC, they is no negligence mens rea for civilians, the draft statute has the same low threshold for both civilians and commanders. And the document does not even acknowledge this difference, or suggest a choice for the authority that would ultimately decide on the creation of the tribunal.

This is particularly dishonest in the present case, given that earlier in the document, the drafters refer to Syria being part of the consensus in Rome to justify importing the ICC crimes, only to ignore this aspect now in relation to the modes of liability.


UPDATE: I have deleted the paragraph on the "legal burden of proof".

• Conclusions

I’m not convinced by this draft. I would expect such accumulation of expertise to produce something more convincing and less sloppy (see for example, the “general principals of criminal law”, or the inclusion of the witness protection provision under the heading of "rights of the accused"…). 

I also think that the attempts at pushing forward ideological agendas, particularly in relation to modes of liability is disturbing, in their systematic desire to make convictions more likely. This is possibly due to the fact that former prosecutors of international criminal tribunals appear so prominently in the list of contributors.

What this illustrates is more broadly what for me is a somewhat disturbing conflation between academia, policy, and legal and political activism. Indeed, this is not just a random academic exercise. The group of people that presented this draft are powerful and listened to academics and professionals in the field of international criminal law. With this, I think should come a responsibility to caution and a clear commitment to intellectual honesty in their assessment of the law, especially in delineating the law as it is and the law how they would prefer it to be. In other words, and to be clear, the drafters of the statute are perfectly free to propose any text they want, but they should be crystal clear on the fact that they are making normative claims in relation to debated issues in international criminal law today, rather than pretend that things are settled.

This “positivist” plea is not merely conceptual, it is (some would say ironically) a moral imperative. Indeed, such practice means that those who do it would no longer be justified in taking the moral high ground when others, such as government officials, for example, twist international law into authorizing torture or allowing the invasion of other countries without security council approval. This might appear as an extreme comparison, but what’s the difference between the two, other than the allegedly better intentions of some? And we all know where the road paved with good intentions generally lead us…