An Ad-Hoc Tribunals as Solution to Impose War Crimes Accountability in Syria?

Abstract

The calling on the Syrian Government to investigate allegation of grave abuses and to prosecute those responsible, regardless of rank, before courts that meet international fair trial standards has begun starting from the raise of the Arab Spring in 2011.1 In principle, national authorities have the primary responsibility to bring those responsible for international crimes to account. In Syria, it is clear that this likely will not happen in the short-term given the demonstrated absence of political will to permit the independent and impartial prosecution of the serious crimes committed this past six year. There is a substantial body of international law governing the commission of war crimes in Syria. Legal guideposts include the Geneva Conventions and their two Additional Protocols, the Rome Statute of the International Criminal Court (ICC Statute), a suite of treaties dedicated to the use and prohibition of certain weapons, and the International Committee of the Red Cross's (ICRC) monumental customary international law (CIL) study. Although the various IHL treaties are well-established and well-subscribed to by States, they contain only rudimentary provisions on war crimes when committed in non-international armed conflicts (NIACs), which is presumptively but not definitively how the conflicts in Syria would be characterized. Likewise, national penal codes and the ICC Statute do not codify all potential war crimes, particularly when it comes to acts of violence committed in NIACs. Because of gaps in the ICC Statute, the ICC Prosecutor would not be able to prosecute as war crimes many of the acts of violence that are so salient in the Syrian conflict, even if a referral to the ICC is forthcoming. This leads the case into another twist, whether any international involvement could bring justice toward Syrian peoples. Is international justice is feasible? And if it would bring justice toward Syrian, how should the process be? Herein lays the paradox, at some point most scholars seem belief on potential logic of an Ad-Hoc tribunals and hybrid tribunals to be imposed on this situation. For that reasons, I would like to argue the limit of this Ad-hoc tribunals in pursuing alleged war crimes in Syria.