Granted, justice stood still in the U.N. Security Council in late May when Russia and China vetoed a resolution referring to the International Criminal Court the atrocity crimes that have been tearing Syria asunder since March 2011.
But the cruelty in Syria continues to mount. An estimated 160,000 citizens have died and half a million civilians have been wounded, with tens of thousands constantly subjected to shelling and bombings. There are countless torture victims, 2.5 million refugees crowded into neighboring countries and 6.5 million internally displaced people.
In Iraq, the reported summary executions of an estimated 1,700 Iraqi soldiers in Tikrit by rebel forces known as the Islamic State, formerly known as ISIS, and other alleged butchery of Iraqi citizens presages the criminal terror descending there.
These numbers together far exceed those of atrocity crimes in Croatia and Bosnia-Herzegovina in the early 1990s. An international criminal tribunal was created for that conflict long before the final peace settlement. After more than three years of warfare in Syria and that conflict's spillover into Iraq, the aim of achieving peace before justice is bankrupt.
Referral of Syria and Iraq to the International Criminal Court remains preferable, but given that it's unlikely, there are at least three other options. The obvious one, for Syria, is to wait until that nation's political and judicial systems coexist in a democratic society administering fair and equal justice. Experts, including free-minded Syrians, envision such a domestic tribunal, but that day seems increasingly distant following the collapse of the U.N.-brokered peace talks and the staying power of Bashar Assad's autocratic government. The country itself may break apart, as might Iraq, which is too fragile now to hold credible trials.
The second option could be a regional criminal court created by the Arab League, as proposed earlier this year. While attractive, the Arab League approach failed to gain traction.
The third option, proposed here, would require a treaty between the United Nations (acting by General Assembly vote) and a government committed to justice for the victims of these two conflicts. Neighborhood candidates such as Turkey, Jordan and even Lebanon or European nations such as France and Italy come to mind.
The integrity of such an initiative would rest on the United Nations holding firm for an independent court in the negotiations. Any such participating government — in union with the U.N. — essentially would be intervening judicially in Syria and Iraq by establishing an “Extraordinary Tribunal for Syria and Iraq.” This year, 58 governments petitioned the Security Council for judicial action on Syria, so there already is strong support.
There also is precedent for such action. Three tribunals were created to bring to justice perpetrators of heinous crimes committed in Sierra Leone, Lebanon and Cambodia.
The Special Court for Sierra Leone, which recently fulfilled its mandate to prosecute crimes committed during its civil war in the 1990s, and the Special Tribunal for Lebanon in The Hague, focusing on the assassination of Lebanese Prime Minister Rafik Hariri in 2005, are international courts created under negotiated treaties between the United Nations and Sierra Leone and Lebanon, respectively.
The Extraordinary Chambers in the Courts of Cambodia is a national court situated in Phnom Penh and governed by a U.N.-Cambodia treaty to prosecute the atrocity crimes of the Pol Pot regime. It has international judges, prosecutors and administrators appointed by the U.N. secretary-general, foreign defense counsel and rules employing international law. All three tribunals have received most of their funding voluntarily from foreign governments, including the United States.
The Lebanon tribunal permits trials in absentia because Lebanese law permits such trials. The first prosecution underway in absentia concerns five Hezbollah defendants who remain indicted fugitives.
After World War II, the Nuremberg tribunal, which permitted in absentia prosecutions, tried and convicted Martin Bormann, a top Nazi official, who has never been captured.
The likely suspects in the atrocity crimes scarring Syria and recently Iraq will resist arrest for years, if not indefinitely. So a practical way forward would be for the U.N. to partner with a government that already embraces in absentia trials under its domestic law. Many European and Arab nations hold such trials (as do Syrian and Iraqi courts), so this would not be a novel procedure.
By ratifying and implementing such a treaty, the participating government would consent to the extraterritorial reach of its own law over the conflicts in Syria and Iraq. The tribunal could be established in the treaty nation or perhaps in The Hague. Faced with international crimes of such magnitude, and threats to regional security, such a government could justify its actions as protecting its national interest and applying conditional universal jurisdiction.
Formal consent from either Syria or Iraq is unlikely, so that would distinguish this effort from the three earlier examples, in which the crime scene governments were the treaty partners with the U.N. But that should not prevent an international effort to achieve justice. The U.N. secretary-general could be tasked to select tribunal personnel from among distinguished global jurists.
Such a tribunal would send a powerful signal that atrocity crimes will not be ignored; indeed, they will be prosecuted and punished, even though the practical penalty may be the ever-present risk of arrest. If an indicted fugitive convicted in absentia one day surrenders or is captured and brought to trial before the tribunal, then he or she would enjoy all due process rights.
The Extraordinary Tribunal on Syria and Iraq would be tough to negotiate, but so too were its predecessors. Ultimately, justice can and must prevail.
David Scheffer is a law professor at Northwestern University and a former U.S. ambassador at large for war crimes issues. He is the author of "All the Missing Souls: A Personal History of the War Crimes Tribunals."