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Friday, 21 September 2012


Since the occurrence of the Arab Spring last year, a number of Middle Eastern and North African countries have witnessed an upsurge of violence and chaos, but none so much as the State of Syria. Most recently, the government of Syria has taken steps to quell the violence by forwarding the names of suspected perpetrators to the ICC. But, is this really the right step to take? Aren’t there alternatives to forwarding cases to the ICC?

Image from The Times Global Spin

On the basis of past practice, it is clear that ad-hoc tribunals have proven largely successful. Since 1949, after the end of World War II, tribunals have been used to try persons suspected of international crimes, as well as – much later on – crimes that fall under the scope of the Rome Statute. The Nuremberg and Tokyo Tribunals, the first truly well-known tribunals, did an especially good job of putting States to task over the atrocities committed during World War II. The same can be said of the ICTR and the ICTY.

The ICTR particularly has helped to nearly dissolve the issues that were present in Rwanda. Working with the local gacaca courts, the Tribunal for Rwanda has managed to try virtually all the suspected criminals from the Rwanda genocide, with the exception of very few. It will soon be closing down, and The Yugoslavia Tribunal will also follow suit in due time.

The advantage of having tribunals that close down after their work is done is obvious. Governments and international bodies are able to save greatly, as the running costs for these courts are only there for a while. The same cannot truly be said of permanent courts such as the ICC. Running costs will exist even when there are no cases to work on. Further, another advantage of these tribunals is their proximity to where these cases arise. While the ICC is located at the Hague, tribunals, with the exception of the Special Court for Sierra Leone and the Special Tribunal for Lebanon, are aptly located.

All the same, Sandra Hodgkinson says the following in addressing the question of whether these tribunals are adequate for tackling terrorism: “There are a number of specific aspects of the existing ad hoc tribunals that may limit their effectiveness as a tool for addressing international terrorism crimes. These aspects... include: transparency; procedural rules regarding classification and pro se counsel; trial location; and the death penalty.”[1]

The above is true for several reasons. First, owing to the fact that these courts are often localised, the issue of transparency may be dispensed with, particularly due to the influence of political powers in the places where these courts are located. Further, with the exception of the Iraqi High Tribunal, the death penalty is not allowed in any of the ad hoc tribunals. On the flip side, several states dealing with terrorism have opted to do so by imposing the death penalty. This inconsistency may prove detrimental as terrorists may opt to act in those countries where they know a tribunal may save them from capital punishment.

Looking at the above, therefore, Syria’s case may be addressed using an ad hoc tribunal, though the rules for the tribunal may be moulded to specifically cope with those issues that are exclusive to the situation in the country. This is how the Iraqi High Tribunal was created. Even so, it is imperative that the power of the ICC be respected, in that it should ideally be given priority over the creation of a hybrid tribunal. At the end of the day, it will be up to Syria and the United Nations to decide what works best for the solution of Syria’s problems. 

But even in incorporating the decision of the United Nations, it may be wise to look at whether a court to address the Middle East’s myriad problems may be appropriate. Just like the European Court of Human Rights, the Caribbean Courts and the African Court on Human and People’s Rights, it might be high time that the Middle East get a court that will specifically add

[1] From the article “Are Ad Hoc Tribunals an Effective Tool for Prosecuting International Terrorism Cases?”