ESTABLISHING A SYRIAN WAR CRIMES TRIBUNAL?; Congressional Record Vol. 159, No. 164

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ESTABLISHING A SYRIAN WAR CRIMES TRIBUNAL?

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HON. CHRISTOPHER H. SMITH

of new jersey

in the house of representatives

Monday, November 18, 2013

Mr. SMITH of New Jersey. Mr. Speaker, the two-year-old Syrian civil

war has produced increasingly horrific human rights violations,

including summary executions, torture and rape. Most recently, both

government and rebel forces have targeted medical and humanitarian aid

personnel. Snipers are reportedly targeting pregnant women and

children. Since the Syrian civil war began, more than 100,000 people

have been killed and nearly seven million people have been forced to

leave their homes. By December of this year, it is estimated that

neighboring countries such as Turkey, Lebanon and Iraq could see as

many as 3.5 million Syrian refugees.

Those who have perpetrated human rights violations among the Syrian

government, the rebels and the foreign fighters on both sides of this

conflict must be shown that their actions will have serious

consequences.

\[H. Con. Res. 51\](https://www.congress.gov/bill/113th-congress/house-concurrent-resolution/51), introduced on September 9th, calls for the creation

of an international tribunal that would be more flexible and more

efficient than the International Criminal Court to ensure

accountability for human rights violations committed by all sides. This

hearing will examine the diplomatic, political, legal and logistical

issues necessary for the establishment of such a court. Today's hearing

will examine controversial issues such as sovereignty, the ICC versus

ad hoc regional tribunals and the sponsorship of such a tribunal.

Perhaps the most famous war crimes tribunals were the Nuremburg and

Tokyo trials--the post-World War II trials of Axis military officers

and government functionaries responsible for almost unimaginable crimes

against humanity. The Cold War rivalry between the United States and

the former Soviet Union prevented the international cooperation

necessary for war crimes tribunals to be convened by the United

Nations. After the end of that international political conflict, there

have been three particularly notable international tribunals to hold

accountable those guilty of genocide or crimes against humanity: in the

former Yugoslavia, in Rwanda and in Sierra Leone.

Each of these tribunals has achieved a level of success that has

escaped the International Criminal Court. The Yugoslavia tribunal has

won 69 convictions, the Rwanda tribunal has won 47 convictions and the

Sierra Leone tribunal has won 16 convictions. Meanwhile, the ICC--

costing about $140 million annually--has thus far seen only one

conviction.

The ICC process is distant and has no local ownership of its justice

process. It is less flexible than an ad hoc tribunal, which can be

designed to fit the situation. The ICC requires a referral. In the case

of the President and Deputy President of Kenya, it was Kenya itself

that facilitated the referral. That is highly unlikely in the case of

Syria. Russia in the UN Security Council would likely oppose any

referral of the Syria matter to the ICC, but might be convinced to

support an ad hoc proceeding that focuses on war crimes by the

government and rebels--one that allows for plea bargaining for

witnesses and other legal negotiations to enable such a court to

successfully punish at least some of the direct perpetrators of

increasingly horrific crimes. And Syria, like the United States, never

ratified the Rome Statute that created the ICC, which raises legitimate

concerns about sovereignty with implications for our country which this

panel will also address.

There are issues that must be addressed for any Syria war crimes

tribunal to be created and to operate successfully. There must be

sustained international will for it to happen in a meaningful way. An

agreed-upon system of law must be the basis for proceedings. An agreed-

upon structure, a funding mechanism and a location for the proceedings

must be found. There must be a determination on which and how many

targets of justice will be pursued. A timetable and time span of such a

tribunal must be devised. And there are even more issues that must be

settled before such an ad hoc tribunal can exist.

David Crane, one of today's witnesses, has suggested five potential

mechanisms for a Syrian war crimes tribunal: An ad hoc court created by

the United Nations; a regional court authorized by a treaty with a

regional body; an internationalized domestic court; a domestic court

comprised by Syrian nationals within a Syrian justice system; or the

ICC.

Each of these first four models have some benefits--some more than

others. The ICC can be ruled out, and a domestic court in the near

future seems highly unlikely. However, we are not here today to decide

which of these models will be chosen. Rather, our objective in a

hearing I held last month was to promote the concept of a Syria war

crimes tribunal whatever form it eventually takes.

Again, those who are even now perpetrating crimes against humanity

must be told that their crimes will not continue with impunity. Syria

has been called the world's worst humanitarian crisis. According to the

World Health Organization, an epidemic of polio has broken out in

northern Syria because of declining vaccination rates. One might

reasonably also consider it the worst human rights crisis in the world

today. Therefore, the international community owes it to the people of

Syria and their neighbors to do all we can to bring to a halt the

actions creating these crises for Syria and the region.

At last month's hearing, we assembled a distinguished panel to

discuss the pros and cons of creating and sustaining a Syrian war

crimes tribunal. This was not an academic exercise. We must understand

the difficulties of making accountability for war crimes in Syria a

reality. Therefore, we must understand the challenges involved so that

we can meet and overcome them and give hope to the terrorized people of

Syria. Their suffering must end, and the beginning of that end could

come through the results of last month's proceeding.

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