So far, achieving any measure of accountability for the grave international crimes being committed in Syria has been elusive, as I’ve outlined before. A draft Security Council resolution that would have referred the situation in Syria to the International Criminal Court (ICC) failed following a rare double veto by Russia and China. The ICC Prosecutor, Fatou Bensouda, has determined that, at this point in time, there are insufficient allegations against citizens and subjects of ICC member states to move forward with a preliminary examination or investigation under principles of nationality jurisdiction. Efforts to establish a hybrid, regional, or ad hoc tribunal have stalled despite growing international support for the concept. Although a few Syrian perpetrators are beinginvestigated and prosecuted wherever they have been found around the globe —particularly in Europe due in part to refugee flows there — these domestic criminal casesare a drop in the proverbial bucket.
All of these possibilities involve individual criminal responsibility. The concept of state responsibility presents another route to accountability. There are several options for achieving state responsibility, some of which have to date been under-explored. This post will outline these options and then discuss a recent case filed in the United States against Syria on behalf of a US citizen, journalist Marie Colvin, who was killed in an attack on a media center in the city of Homs in the early days of the war.
Options for State Responsibility
Human Rights Bodies. The first, and arguably least robust, option for achieving state responsibility involves proceedings before the various human rights treaty and multilateral bodies, such as the Human Rights Council in Geneva. Syria has ratified a number of human rights treaties, some of which allow for victims to assert individual claims against states parties before a treaty body so long as the state has consented to such procedures. The Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), for example, envisions an individual complaint procedure before the Committee Against Torture. This procedure is unavailing, however, because Syria has not consented to it. As a result, the CAT Committee can only comment upon reports on treaty compliance received by Syria and non-governmental organizations (so-called “shadow reports”). The Committee’s last set of Concluding Observationsdevoted to Syria (2012) reveal Syria’s utter flouting of the CAT.
The International Court of Justice. The second option involves claims before theInternational Court of Justice (ICJ) in The Hague. The ICJ has no criminal jurisdiction, but it can entertain proceedings between sovereign states (“contentious cases”) and exercise a form of advisory jurisdiction. It is rare for states to bring suit against other states before the ICJ absent compelling state interests. Indeed, one of the first efforts to invoke the ICJ in the human rights context involved the ultimately unsuccessful campaignto identify a state willing to bring suit against Cambodia under the Convention on the Prevention and Punishment of the Crime of Genocide, which at Article 9 envisions ICJ jurisdiction over suits arising out of the “interpretation, application or fulfilment” of the Convention.
Although the ICJ has not historically been a forum for states to challenge the human rights practices of other states, this may be changing. For example, the proceedings brought byBelgium against Senegal under the CAT — which challenged Senegal’s failure to prosecute or extradite former Chadian dictator Hissène Habré who was present on its territory — ultimately helped to galvanize the establishment of the Extraordinary African Chambers, which recently sentenced Habré to life in prison. In its 2012 judgment, the ICJ ruled that all states parties have a common interest in ensuring compliance with human rights treaties; as such, all states parties have standing to enforce these obligations erga omnes partes.
The ICJ can also exercise a form of advisory jurisdiction, enabling it to rule on international law questions presented to it, including the legal consequences of state action. If no state is willing to institute contentious proceedings against Syria before the ICJ, the General Assembly could request an advisory opinion on state responsibility for Syria’s breaches of international law. The General Assembly made just such a request in 2003 seeking a determination of the legal consequences of Israel’s construction of a security wall in Palestine occupied territory.
Syria is in radical breach of many of its human rights obligations; as such, any other state party to those treaties could institute proceedings against Syria before the ICJ. It remains to be seen if any state will be willing to take such a stand to challenge the Assad regime’s actions in prosecuting the war.
National Courts. Finally, national courts can under certain circumstances adjudicate claims against sovereign entities, although such domestic jurisdiction is circumscribed by principles of foreign sovereign immunity, as discussed in my recent posts on Judge Merrick Garland’s Foreign Sovereign Immunities Act (FSIA) jurisprudence here and here.
Colvin v. Syria. As these previous posts discuss, foreign sovereign immunity is governed in the United States by the FSIA, which offers the sole basis to assert jurisdiction over foreign sovereigns in US courts. Last weekend, the Center for Justice & Accountability (CJA), a San Francisco-based human rights law firm with which I am affiliated, and the global law firm of Shearman & Sterling filed suit against Syria under the FSIA on behalf of the family of the veteran war correspondent, Marie Colvin. Colvin was killed during the siege of Homs — an opposition stronghold — on February 22, 2012, in an artillery attack on the Baba Amr Media Center.
Read the full post at Just Security.
- Publication Type:Other Writing
- Publication Date:07/13/2016