David Scheffer proposes (legally) unsatisfactory solution for justice in Syria

In a Opinion Piece for the LA Times, David Scheffer, seasoned diplomat, esteemed and influential expert in International Justice issues, makes his own proposal to push forward for justice in Syria. Essentially, he proposes a treaty between the UN and a third state (i.e, not Syria):

The third option, proposed here, would require a treaty between the United Nations (acting by General Assembly vote) and a government committed to justice for the victims of these two conflicts. Neighborhood candidates such as Turkey, Jordan and even Lebanon or European nations such as France and Italy come to mind.

[…]

There also is precedent for such action. Three tribunals were created to bring to justice perpetrators of heinous crimes committed in Sierra Leone, Lebanon and Cambodia.

The Special Court for Sierra Leone, which recently fulfilled its mandate to prosecute crimes committed during its civil war in the 1990s, and the Special Tribunal for Lebanon in The Hague, focusing on the assassination of Lebanese Prime Minister Rafik Hariri in 2005, are international courts created under negotiated treaties between the United Nations and Sierra Leone and Lebanon, respectively.

The problem is that the three examples put forward by Scheffer are in fact very different in terms of their legal nature and sources of their authority. Indeed, from a technical perspective, the only treaty-body of the three is the Special Court for Sierra Leone (SCSL), established between the country and the UN. The other two tribunals, while a treaty with the UN was involved at some point, actually draw their authority from other sources. The Special Tribunal for Lebanon (STL) was created by the UNSC in 2007, following the non-ratification by Lebanon of the treaty meant to initially create the tribunal. The Extraordinary Chambers in the Courts of Cambodia (ECCC) are in fact a domestic court established through domestic legislation. It therefore makes no sense to lump them in together from a legal point of view.

Putting that aside, a proposed treaty based tribunal with a third state doesn’t really solve the legal obstacles that would arise. Scheffer continues his “demonstration” in the following way:

By ratifying and implementing such a treaty, the participating government would consent to the extraterritorial reach of its own law over the conflicts in Syria and Iraq. The tribunal could be established in the treaty nation or perhaps in The Hague. Faced with international crimes of such magnitude, and threats to regional security, such a government could justify its actions as protecting its national interest and applying conditional universal jurisdiction.

This is problematic. Either the proposed third state already has in its domestic law extraterritorial jurisdiction of sorts for international crimes and the treaty would not be necessary, either it doesn’t and the treaty would not change that. The same would be true of immunities, which I think would still remain in force, despite a treaty with the UN. I know there has been a lot of talk over the years on whether the ICJ, in the arrest warrant case, made an authoritative statement on the fact that immunities are not applicable in international tribunals, but I never found any of the arguments convincing. The same holds true in relation to arguments made along the lines that the support of the “international community” might give an added international cachet to a tribunal, thus allowing to bypass some international law rules such as immunities (see the Taylor Immunities decision at the SCSL), but that is equally unconvincing.

The bottom line is that Scheffer’s proposal is at best useless and at worst inaccurate from a legal perspective. The fact is that the only solution to bypass Syria’s lack of consent to trials, apart from unilateral domestic proceedings by countries having adopted the legal tools to that effect, is through the creation of an ad hoc tribunal by the UNSC under Chapter VII.

I know Scheffer’s proposal was not made in an academic publication, but the dumbing down for a broader audience can only go that far before become disinformation.

This proposal joins others that have been made over the years, for which I have been skeptical for various different reasons. A draft statute for an ad hoc tribunal was put forward a little while back which was a legal mess and I’ve already expressed my doubts at whether a referral to the ICC would make much sense.

I remain convinced that this conversation is premature and that if states are serious about “justice for Syria” today, it should mean first and foremost to actually put an end to the commission of the crimes. To be clear, I’m not advocating for unilateral intervention without UNSC authorization. I’m saying that states should stop hiding behind the limitations of law to not do what they think is morally and ethically right. They should leave international justice where it is, as an ex post facto institution with limited effect, rather than drag it in the already complex discussion on how to deal with ongoing conflict resolution.

H/T to Kevin Jon Heller

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