Imagining Justice for Syria, by Beth Van Schaack, Oxford University Press, 2020, 476 pages, £64
It is tempting to conclude that our multilateral institutions do not have the capacity to address tragedies like Syria. However, the fault is not necessarily in the institutions themselves but with those who have the power to act. The law exists, as does a cadre of professionals with the necessary skills and a ready set of justice models; what is lacking is the ability to achieve a political consensus on a path forward, or a willingness to proceed without such a consensus, with respect to situations like Syria, where there has been no regime change, where atrocities are ongoing, and – most importantly – where the great powers find themselves at odds with each other. The long-standing weakness in our system of international justice is made all more pronounced by the situation in Syria.
It has been over a decade since we last went about our daily lives without having to hear about, or see on the news or social media, atrocities being committed in Syria. Just reflect on all that has happened to you since 2011 (what you accomplished at university or work, the events in your personal life, your travels, your joys and your losses), and just imagine what your life would have been like were you to trade all of those memories and experiences for a decade of living in Syria, under or in flight from the Assad Regime, gassed and poisoned, terrorized by the Islamic State of Iraq and the Levant (ISIL), deprived of virtually every human right and human dignity, constantly under fear or on the run, watching loved ones and friends being tortured, maimed, killed, living in refugee camps, crossing dangerous lands and waters in search for safety only to find closed border-crossings by hostile governments, and so on.
If you can imagine your life as such for a decade (and much more as it regrettably seems), if you are curious about how Syria got to where it is today, if you are questioning why the international community and in particular the UN Security Council has been unwilling or incapable of bringing peace and justice for Syria, if you are wondering why the International Criminal Court (ICC) has neither been called upon nor taken any serious initiatives to investigate, arrest, and try those most responsible for various mass atrocities, if you are hard pressed to conceptualize war-torn Syria transitioning to a peaceful democracy where the perpetrators of past crimes will be held to account through due process based on internationally recognized human rights standards, and where victims’ rights are fully protected, their property restored to what it was, and where reparations for losses and injuries are genuinely made available – if you are interested in any one of these issues – then look no further than Professor Beth Van Schaack’s Imagining Justice for Syria.
Prof. Van Schaack has written a cogent, eye-popping, compelling, probing, measured, provoking, informative, thoughtful, practical, instructive, timely, and brilliant gem. Packed with observations, sources, and analyses on Syria, this book is correspondingly instructive in imagining justice in other conflict or post-conflict areas. Any serious student or practitioner of international affairs, international human rights, international humanitarian law, international criminal law, transitional justice, and, of course, anyone involved in working on any aspect of the Syrian civil war and attendant ongoing atrocities by the likes of ISIL should add Imagining Justice for Syria to their mandatory reading list – and to their library. It is not just a primer for the interested and uninformed about Syria, it is also an excellent source for the experienced and involved.
Imagining Justice for Syria is logically structured into 11 chapters. The Introduction (chapter 1) informs the reader of the challenges that make the promise of peace and justice as elusive today as it has ever been for the past decade. Fast-forwarding to the Conclusion (chapter 11), the reader, having endured lows and highs over the course of reading some 430 pages – disturbing, disappointing, and discordant accounts of what is happening on the ground in and around Syria, who is to blame, why notable atrocities have gone unabated, how members of the international community cannot find the moral, legal, and political courage to set aside their regional or geopolitical or ideological differences and make the tough calls for action needed to end the ongoing atrocities, hold those responsible to account, and assist in crafting a holistic approach for transitional justice tailored to Syria envisioned with and assisted by well-intentioned, talented, forward-thinking Syrians – is left with guarded hope that it is not yet midnight in Syria. Things can turn around. But how so?
To appreciate the challenges in daring to imagine peace in Syria, Prof. Van Schaack starts by cogently giving a short, non-dogmatic history of the conflict (chapter 2). There is a lot to unpack, but for the most part, she admirably lays out the essential events and players. Many authors’ treatments of mass atrocities, especially of ongoing one such as in Syria, tend to be flawed or skewed, lacking the intellectual rigor expected of historians, relying instead on media reports, unconfirmed or untested oral histories, anecdotal inferences, lazy suppositions, and so on, with the narrator making sweeping generalizations based on questionable data or as the late historian Michael Vickery would put it, by adopting a standard total view – relying on unsubstantiated facts repeated from text to text as if true with no real analysis or proof of credible authority; regurgitation by chroniclers, journalists, and even historians claiming to be writing history. Eschewing unbalanced and unqualified factual orthodoxies, Prof. Van Schaack is measurably circumspect, allowing space for the reader to draw inferences and conclusions on what she acknowledges may not always be complete and objective evidence from which categorical claims can be accepted.
The next two chapters (3 and 4) are disquieting when considering the unimaginable, yet preventable, misery and loss of life, which, in no small measure, is due to geopolitical inertia and maneuvering. As the Kenyan proverb goes, when elephants fight, it is the grass that suffers. Prof. Van Schaack walks the reader through the sordid history of the UN Security Council’s abject failure in exercising its mandate. She expertly unpeels the Syrian UN Security Council onion (the number of resolutions and would-be resolutions and efforts is staggering), exposing the gamesmanships, pettiness, and shortsightedness of the permanent members (P5), showing the infectiveness of the UN Security Council.
Credible voices have been sounding the alarm for years; perhaps the time has come to seriously rethink and revoke the veto power of the P5, expand the UN Security Council’s permanent membership, and make other corrections and adjustments to avoid the sort of quagmire and non-action that has allowed the Assad Regime to literally get away with mass murder. With the UN Security Council being dysfunctional, with the P5 unlikely to come to an accommodation that puts the rights and safety of the Syrian people first, Prof. Van Schaack informs of creative efforts by the UN General Assembly in bypassing the UN Security Council to find solutions in making an end-run around the UN Security Council logjam. While I would have liked a bit more on these efforts and on how the UN General Assembly might flex even more its wings (even at the expense of overlapping with the UN Security Council’s mandate) the reader is sufficiently informed on the promises that may lie ahead as it becomes ever more increasingly apparent that in situations such as Syria, the UN General Assembly may need to more aggressively and creatively step into the breach since the possibility of the P5 reaching consensus – be it for intervention to stop ongoing atrocities or in establishing dedicated ad hoc tribunals (forget referrals to the ICC) – is predictably nil.
In the next four chapters (5 to 8), Prof. Van Schaack explores international, national, and transnational possibilities in bringing the most responsible alleged perpetrators and others to account through fair trials upholding international standards, and other potentially available avenues such as civil suits in domestic courts, so that victims can, at a minimum, enjoy some semblance of compensatory justice. She observes that much of the international community, as well as Syrians, have misguidedly looked to the ICC as a panacea – the most likely international judicial institution capable of initiating investigations and prosecutions. Thus, if only the UN Security Council would make a referral, or if only some high-level target could be investigated for crimes spilling over into a Member State’s territory.
Prof. Van Schaack comprehensively shows why the ICC is not a viable venue, and why too much hope has been uselessly put into the ICC basket has negatively impacted efforts to consider and pursue nimbler options. I could not agree more. Indeed, considering the dysfunctionality of the ICC as concluded by the recently released Expert Report (see my review of it here), the ICC should best stick to situations that are more manageable and less contentious. The ICC Prosecutor (OTP) ought to be plucking low hanging fruit as opposed to venturing off on precariously high limbs to reach fruit hanging well beyond the OTP’s (and invariably the ICC’s) capacity.
Perhaps the newly elected Prosecutor will resist the siren calls for venturing into situations such as Syria and devote the OTP’s (and ICC’s) resources to situations it can pursue, hopefully, with some success – a commodity in short supply thus far. On this note, might I also add an unsolicited refrain to the ICC Prosecutor: ignore any UN Security Council referrals unless they come with conditions of (a) picking up the tab; and (b) ensuring its full support and weight in assisting the ICC – much as it did with the ad hoc tribunals, and unlike it has done with the Sudan/Al-Bashir referral.
My take for some years has been that the best forum for dealing with the Syrian mass atrocities would be a specialized ad hoc tribunal modeled after the International Criminal Tribunal for the former Yugoslavia. Here too, Prof. Van Schaack unpacks past and ongoing efforts to move in that direction, astutely noting that getting the P5 of the UN Security Council to agree is a non-starter. And it is not about the financing of an ad hoc tribunal (though it is a consideration), it is about geopolitical will. This possibility being foreclosed, Prof. Van Schaack explores other possibilities by examining regional courts that may serve as models. Here too we are reminded that while there are models from which to borrow and design a tailor-made regional court for Syria, thus far too little appetite exists among the regional players to venture down this road. Again, too many disparate issues and interests, untold complexities, and, of course, the exorbitant costs associated with establishing and operating mass crime tribunals (hopefully to an international standard) make this option for imagining justice in Syria a concept that has yet to find traction.
Despite these challenges, Prof. Van Schaack points to numerous examples of prosecutions at domestic courts based on a catch as catch can approach, exposing, if you will, why such efforts, however admirable, fall short of what can and should be done by tribunals dedicated to and equipped for what it takes to investigate and prosecute alleged perpetrators of crimes in Syria. While not all such trials rely on universal jurisdiction, expect this concept – despite the challenges involved in applying it domestically (see here for an excellent discussion) – to prominently feature in many of the national trials, with a hopeful windfall of flushing out some of the shortcomings and challenges it its application. Universal does not connote uniform. So, to the extent some uniformity can be achieved in applying universal jurisdiction (start with the strict adherence to nullum crimen sine lege and the principle of legality), the results are more likely to be accepted.
Chapter 9 deals with the ongoing efforts of a host of NGOs, local organizations, international investigative efforts of various pedigree, engaged in collecting, cataloging, and controlling every imaginable type of evidence generated by the most documented crime base in human history, as characterized by Prof. Van Schaack. This chapter raises interesting questions concerning the quality (authenticity and reliability) of the evidence being gathered, some of which, when introduced to be used in national criminal courts or international tribunals, will come under severe scrutiny, calling into question the provenance, methods of collection and preservation, authenticity, reliability, context, and so on. There is much to be said about the quality control of the evidence being gathered; not all evidence-gatherers seem to be adhering to best practices with a view of collecting and archiving evidence that meets requisite standards to be used at trials. I suspect that much of the evidence may meet the admissibility threshold. However, whether any weight, if at all, will be given to much of the admitted evidence is another matter, especially in the absence of other independently supporting reliable evidence. Prof. Van Schaack does not disappoint in identifying the challenges and shortcomings resulting from amassing evidence of various degree of quality, while offering perceptive observations on how the various evidence-gatherers might benefit from a more synergistic approach. Investigators would find this chapter exceptionally useful.
Chapter 10 deals with transitional justice. Rather than dive right into Syria (which she does admirably in the second half of the chapter), Prof. Van Schaack first treats the reader to a brilliant summary of what transitional justice is, the various approaches and desperate notions on what should be prioritized, what sort of accountability should be pursued, and so on. Here she offers some golden tips. Having worked on transitional justice programs in Bosnia and Herzegovina and in Cambodia and having seen experts parachuting in with cookie-cutter blueprints, offering modalities and fixes that mirror those from which they hail without taking into account culture, context, compatibility, capacity or congruence, it was refreshing to read this chapter – one of the best pieces I have come across on what transitional justice is. Prof. Van Schaack exquisitely explains why it is necessary to take a boutique approach in holistically tackling not just impunity but all that is relevant in transitioning a war-torn society with institutional, social, economic, political, religious, gender, tribal issues, etc., all of which to some degree were contributing factors to the conflict or inevitable obstacles to transitioning to a sustainable liberal democracy grounded in the rule of law where past injustices and inequities are seriously addressed.
Impressively, Prof. Van Schaack backs up virtually every fact, assertion, and opinion with rich source material. Even more impressive, however, is her uncanny ability to unintrusively lay out, objectively, all sides and countervailing positions before offering balanced, insightful, and pragmatic conclusions that temptingly engage.
A tour d’horizon, Imagining Justice for Syria is a tour de force unreservedly recommended.
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