JURIST Guest Columnist Gregory Gordon of the University of North Dakota School of Law and Benjamin Brockman-Hawe of the Bosman Law Firm say that some measure of justice could be brought to the conflict in Syria by amending the statute for the Special Tribunal for Lebanon…

Well over one year into the bloody sectarian conflict in Syria, evidence of Assad regime atrocities appears incontrovertible. In September, among other findings, the UN-sponsored Independent Commission of Inquiry on Syria presented evidence that Syrian armed forces were shelling entire cities and neighborhoods indiscriminately and killing civilians on a massive scale. In a sealed list, it ascribed liability to a group of Assad regime officials for war crimes and crimes against humanity. It also urged the UN Security Council to refer the situation to the International Criminal Court (ICC) through its Chapter VII powers.

Unfortunately, though, bringing Syrian perpetrators to justice in The Hague through conventional means may not be possible. Syria has signed but not ratified the Rome Statute and both Russia and China have elected to shield the Assad regime from a Chapter VII referral. At a recent UN Security Council meeting [PDF], Russia suggested it was prepared to veto any proposed resolution that would bring the situation before the ICC. China, for its part, issued a thinly veiled warning that it would block any such initiative.

But blame for this state of affairs does not rest entirely on Russian and Chinese shoulders. The UK and the US have not even attempted to pressure their intransigent colleagues in the P-5 (the five permanent members of the UN Security Council) and neither power has publicly called for the prosecution at the ICC of Assad and his top officials. That leaves France as the sole permanent Security Council member to have called for an ICC investigation into the situation.

But there may be an alternative path to at least partial justice in The Hague. The Special Tribunal for Lebanon (STL) is a Chapter VII court created for the express purpose of trying the killers of former Lebanese Prime Minister Rafiq Hariri. A careful reading of the STL’s jurisdictional provision, however, reveals that the Security Council left open the possibility of modifying the STL Statute to bring other crimes within the remit of the Court. Article 1 states:

If the Tribunal finds that other attacks that occurred in Lebanon […on…] any later date decided by the Parties and with the consent of the Security Council, are connected in accordance with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005, it shall also have jurisdiction over persons responsible for such attacks.

The Security Council could modify the statute and then refer the killing of former Lebanese intelligence chief Wissam al-Hassan — believed by many to be a casualty of the Syrian Civil War.

What does the assassination of a Lebanese official have to do with the Syrian Civil War? Consider the circumstances surrounding the crime. In August 2012, al-Hassan arrested a former Lebanese minister for collaborating with high-ranking Syrian officials to assassinate a number of prominent anti-Assad Lebanese public figures. In his subsequent recorded confession, the arrested Lebanese minister allegedly stated that “[t]his is what Bashar (Assad) wants.” Two months after this confession, al-Hassan was killed in a car-bomb explosion bearing a striking resemblance to other recent Syrian-attributed assassination plots targeting prominent anti-Assad Lebanese. Strong evidence suggests these attacks were carried out by Syria’s domestic proxy, Hezbollah, four of whose members have already been indicted by the STL in connection with the Hariri case.

An STL referral may be the perfect vehicle to allay Russian and Chinese concerns about international meddling in Syria while bringing to justice persons linked to an important aspect of the Assad regime’s criminality. While Russia and China are certain to nix a general referral of the Syrian situation to the ICC, sending the al-Hassan assassination to the STL may prove far more palatable to them. At the moment, there is no “smoking gun” that implicates Syria in the assassination. So sending the matter to the STL may seem relatively innocuous at this point. Potential Sino-Russian sympathy for such a move is already in evidence as both powers recently agreed to a UN press release that emphasized “the need to bring the perpetrators, organizers, financiers and sponsors of [the al-Hassan murder] to justice” and recalled “that terrorism in all its forms and manifestations constitutes one of the most serious threats to international peace and security.”

And such a course of action might be advantageous for Russia and China on other grounds as well. In particular, an STL referral would allow the two P-5 powers to deflect some of the bad press they have received for shielding the Assad regime and present themselves as flexible global powers concerned about regional instability. Moreover, both Russia and China have struggled with armed separatist movements inside their own borders, and referring the case to the STL could be presented to their allies as consistent with their longstanding “anti-terrorism” policies.

Apart from side-stepping Sino-Russian obstruction, an STL referral could have other advantages too. In many ways an STL-led investigation — versus one at the ICC — is more likely to result in a successful prosecution. The recent situation in Libya might be instructive in this regard. In the absence of domestic cooperation, the ICC has struggled to obtain custody of indicted Libyan suspects Saif al-Islam Gaddafi and Abdullah al-Senussi. So their cases in The Hague may never proceed. A similar lack of cooperation from Syria and Lebanon can be anticipated in the al-Hassan case. In a worst-case scenario, the STL is at least authorized by Article 22 of its constitutive Chapter VII Resolution to try accused in absentia. While this may raise legitimate due process concerns — although attenuated since in most cases the accused can be re-tried in person if later apprehended — given current regional realities it may be the only way to shed light on the underbelly of the Assad regime in a court of law. And, like Rule 61 hearings at the ICTY (where, in cases of failure to execute arrest warrants, prosecutors present the indictment and supporting evidence in open court), in absentia trials could lead to other, more robust justice efforts. At the same time, given its familiarity with the regional power dynamics, major players and situation on the ground in the Hariri case, the STL is uniquely qualified and better prepared to lead an investigation into the murder of al-Hassan.

Moreover, sending the case to the STL may help placate Lebanon’s Sunni population, which clashed in the streets with Assad sympathizers in the wake of al-Hassan’s murder. While fears that the assassination would trigger a wave of sectarian violence have dimmed over the past two weeks, an STL referral would still yield important dividends by giving some sense of security to Lebanese concerned that Syria is attempting to reignite its long moribund civil war. Such a desideratum has likely motivated certain Lebanese politicians to call for the STL to be seized of the al-Hassan case. And invoking STL jurisdiction may provide the added bonus of helping deter additional assassination attempts going forward.

Sending the al-Hassan case to the STL can in no way substitute for the larger justice enterprise the Syrian situation warrants. And perhaps the risk of in absentia trials and resultant due process deficits outweigh the salutary effects of any such referral. But as evidence mounts of the Assad regime’s bloody handiwork and the Syrian conflagration spreads to neighbor states, initiating an STL case may represent the best chance of sending an important signal to Damascus and at least beginning the inevitable accountability process.

Gregory Gordon is an Associate Professor of Law at the University of North Dakota, where he also serves as Director of the University of North Dakota Center for Human Rights and Genocide Studies. He teaches in the areas of international and criminal law. Gordon has worked with the Office of the Prosecutor for the International Criminal Tribunal for Rwanda, where he served as Legal Officer and Deputy Team Leader for the landmark “media” cases: the first international post-Nuremberg prosecutions of radio and print media executives for incitement crimes.

Attorney Benjamin Brockman-Hawe has worked at the Special Tribunal for Lebanon, the Special Court for Sierra Leone and the Court of Bosnia and Herzegovina (War Crimes Chamber). He recently accepted a position with a civil rights law firm in New York.

Suggested citation: Gregory Gordon and Benjamin Brockman-Hawe, Beginning the Justice Process for Syria: The Special Tribunal for Lebanon, JURIST – Forum, Nov. 12, 2012, http://jurist.org/forum/2012/11/gordon-brockman-syria-stl.php.