Q&A with barrister Toby Cadman on the Syrian conflict
By Rebecca Lowe
Toby Cadman, former senior legal advisor to the Human Rights Chamber for Bosnia and Herzegovina, is bringing civil lawsuits against members of the Syrian government under the US Alien Torts Claim Act and Foreign Services Immunities Act for alleged torture, murder and arbitrary arrest. He believes that such efforts to ensure accountability fill a vacuum left by the Security Council. Here he explains why and gives his views on the unfolding crisis in Syria.
How significant was the UN Security Council statement on 27 May and its condemnation of Syria’s actions as illegal under international law?
It is hoped that this statement will be the necessary impetus to push the UN Security Council to consider a resolution referring the Syrian situation to the International Criminal Court (ICC) or to establish an ad hoc process under the auspices of the UN/Arab League. It is of course to be expected that Russia and China will veto any such action. However, the point that must be made that there is broad agreement that crimes of an international character have been committed. Accordingly, it is important to note that an ICC referral relates to the ‘situation’ and not an individual. It will be for the newly appointed ICC prosecutor to determine who bears criminal responsibility and to seek to bring charges.
The statement says that people must be held accountable – but what accountability mechanisms are in place?
This is a somewhat controversial question as there are many different mechanisms in place without much coordination. However, that is now changing. The international community is consolidating its efforts and formulating a cohesive and inclusive process that will pool resources in order to properly document crimes via the Syrian Centre for Accountability and Justice, which is largely being led by the US and UK. The international community has collectively prioritised an accountability process by way of creating a documentation centre or clearing house.
In this regard, it is also vital to point out that there needs to be a clear distinction between documenting human rights violations and investigating crimes within the jurisdiction of the ICC. The recent Lubanga trial judgment at the ICC spent a considerable amount of time discussing the problems of using human rights activists to collect evidence for criminal prosecutions. The Lubanga experience vividly illustrates the difficulty of relying on human rights organisations in collecting evidence. Though the Office of the Prosecutor (OTP) was able to convict Lubanga in spite of these investigative problems, taking a similar approach in a more difficult case may well lead to an acquittal.
However, one of the issues that I am currently involved in with the Syrian Emergency Task Force in Washington DC, my clients, is two-fold. First, we are bringing civil lawsuits against senior members of the regime under the US Alien Torts Claims Act and Foreign Services Immunities Act to establish liability for acts of arbitrary arrest, enforced disappearance, torture, and murder. These matters are also being pursued before the UN Special Procedures mechanisms in Geneva. Secondly, and equally importantly, a referral to the ICC is only likely to ever address a handful of individuals. The international community must engage on developing a long term strategy that will develop a domestic capacity to transition and to assist in the rebuilding of Syria as a democratic state.
‘As an international lawyer having specialised in international crimes for more than a decade, I can safely say that this is the worst display of human depravity I have ever experienced.'
Barrister and former senior legal advisor to the Human Rights Chamber for Bosnia and Herzegovina
What is the next step for the Security Council, assuming the violence continues?
The next step must be to reconsider a new resolution that goes further than condemnation. Strong words have little impact unless backed up with further action, such as the threat of military action, economic sanctions or an ICC referral. Of course the criticism will be that this is regime change. There are two ways to consider this. First, the will of the Syrian people for bringing about democratic change is not regime change by the international community. Second, the question has to be raised as to whether Bashar al-Assad has lost the right to continue serving as president of the Syrian people and if so, he should step down. However, the Syrian regime is bigger than one man. There is an entire apparatus of security services and militia serving to maintain the current regime.
Do you support Annan’s six-point plan, considering it has had no impact on the violence so far?
The six-point plan is a starting point for bringing about a peaceful transition. However, despite a temporary decline in the violence, not a single aspect of the plan has been implemented. There is also the criticism that the monitoring mission lacks the capacity to deal with the Syrian conflict. For example, there is no forensic capacity to investigate, in detail, attacks such as the Houla Massacre. The international community has to get fully behind the Annan plan. It needs to provide the necessary resources to the monitors and it needs to develop an investigative capacity. At present, many observers consider that the Annan plan was set up to fail so that further action can be taken. Time will tell whether these were the true intentions of the international community.
How bad is the violence, and who is to blame?
My enquiries have led me to believe that the violence since May 2011 has been committed as part of a state policy and the organs of the state – meaning the security and intelligence services, military, armed militia, with the active support of a handful of states. The types of crimes being committed range greatly. The level of sophistication in terms of the methods used is beyond belief.
As an international lawyer having specialised in international crimes for more than a decade, I can safely say that this is the worst display of human depravity I have ever experienced. The figures concerning casualties and detainees are moderate to say the least. I would expect the real figures to be significantly higher, possibly three to four times higher. It is with these thoughts in mind that it is difficult to understand the impotency of the UN Security Council.
I would say even if the violence were attributed to the opposition, it is on a much lower scale and largely in response to the conduct of the government forces. As regards the statements that armed terrorist groups are responsible for the violence, or equally responsible, I do not believe that there is any reliable basis for forming such a view. However, if the Russian/Syrian government position is correct, then what is there to fear by referring the situation to the ICC?