Introduction
In a recent interview, legal scholar Dr Michelle Burgis-Kasthala talked with Professor Joseph Weiler about her article, ‘Entrepreneurial Justice: Syria, the Commission for International Justice and Accountability [CIJA] and the Renewal of International Criminal Justice’. The article’s subject is currently attracting growing interest, and some enthusiasm, in certain legal circles (see e.g. also Alexander Heinze) and it lies at the heart of a well-resourced movement to bring criminal cases under provisions of ‘universal jurisdiction’ so as to fulfil a ‘responsibility to prosecute’ (a topic discussed further in this paper).
CIJA’s work centres on gathering captured government documentation in Syria to be used in providing linkage evidence for prosecutions of war crimes. (Linkage evidence for such prosecutions differs from more conventional types of evidence in that rather than providing direct proof of guilt for individual offences, it establishes a chain of responsibility to connect high-ranking officials with atrocity crimes committed on the ground.)
In the course of the interview, Weiler gently presses some critical questions. This post presses them a bit harder, and goes on to suggest some answers that can be found when the investigation is less reliant on interviews with protagonists.
Acknowledged questions about CIJA, a ‘secretive organisation’
An overarching concern highlighted by Weiler is the conceptual framing of CIJA’s innovative intervention in the field of international criminal justice. The concept announced in the title of Burgis-Kasthala’s article – entrepreneurial justice – appears rather paradoxical. Insofar as justice is a public matter, the project of treating it as a business opportunity would seem to involve a conflict of basic principles. Concerns on this score are hardly lessened by the fact that CIJA appears to be less transparent than a normal private company would be about its operations and finances. An effect of this secrecy is that the scholar who researches the organisation by means of interviews with its staff risks being trapped, by a commitment of confidentiality, into a degree of complicity that is in tension with academic independence. (Burgis-Kasthala has addressed some of the difficulties posed for the investigator by CIJA’s secrecy in another paper.) As a research method, interviewing protagonists also offers limited possibilities of getting at what Weiler calls the ‘dark side’ of the operation. And as he observes, there is always a dark side…
Before showing where a more searching light needs to be directed, it should be acknowledged that Burgis-Kasthala does record some critical questions about CIJA. She groups these under three broad headings: access to their work, the constituency for it, and the ethics involved.
Regarding access to the work of CIJA, questions concern both the organisation and its product. The organisation, she notes, ‘tries to keep its identity quite secret’, and when she was permitted to pay a brief visit to the founding director, Dr William Wiley, at CIJA’s HQ, it was at ‘a location I’m not allowed to divulge’. CIJA is registered as an NGO under Dutch law, she reports, although its headquarters are not in the Netherlands but in an undisclosed European capital. Its work purports to be in the public interest, but it is undertaken ‘extremely covertly’: ‘I’m not really allowed to know about the intricacies of their work; I’m not allowed to look at the legal briefs they’ve produced; I’m not allowed to look at the data they’ve secured.’ She was told CIJA had prepared many legal briefs, but she was not allowed to know any detail about them. One might well wonder, as Weiler does, at the degree of secrecy involved. Is it really to protect CIJA operatives? Is it also for commercial reasons in a competitive market? Could it even be because aspects of the operation are illegal or unethical?
‘The beauty’ of CIJA’s model, according to Burgis-Kasthala, is that it has a high risk tolerance. What this means in practice is that it works with people on the ground in a war zone who can have access to documents that would be precluded for others by legal, ethical and security concerns, including mortal danger. Looking more closely at the risks tolerated, using research methods that are not confined to interviews with protagonists, can reveal something of the operation’s darker side.
Regarding CIJA’s constituency, interviewees responded to the question of who the organisation serves by saying: “basically the Syrian people”. Yet given how divided are the Syrian people – in Syria and in the diaspora – and in view of the sheer weight of external interests interpreting Syrian political will in myriad ways, this answer seems rather blithe. Less nebulous are mentions of the organisation’s need to provide ‘proof of value’ for funders’ investment: interviewees revealed that the ‘importance of keeping donors happy was ever present on their minds’. CIJAs’s funding comes from several European states, and it is those states only that have access to the briefs prepared by CIJA. So as all the money has public sources, as Burgis-Kasthala confirms to Weiler, this leaves questions about the ‘fascinating combination of public and private money’ that she refers to, as well as about the funders’ purposes.
As for ethical questions, these are legion. A central one is how well the purposes of funders, and thus of CIJA, align with a dispassionate determination of what justice requires. Burgis-Kasthala tells Weiler that the aim of CIJA was to bring to trial, besides Assad, also leading opposition figures. But this suggestion is hard to square with the fact that CIJA relies on opposition groups to gather its materials. Moreover, since the gathering itself involves activities that critics could describe as looting and smuggling, in the context of an armed insurgency, the various risks CIJA tolerates all have ethical dimensions. Burgis-Kasthala also reflects on the ethical predicament of the researcher who gains confidential insights into an organisation some of whose members may be running serious personal risks. Her reflections mainly concern their safety and security, putting her in a position of defending the secrecy of CIJA’s operations. But other questions are whether the secrecy is excessive given the public ends of justice, or whether it might even be serving purposes that would be deemed ethically indefensible if uncovered.
Furthermore, questions of research ethics might even include the effect on other researchers of her agreement to the confidentiality restrictions imposed by CIJA’s director. As it happens, the present author has hitherto felt inhibited from publishing certain comments on CIJA out of collegial concern that information revealed might mistakenly be attributed to indiscretion on Burgis-Kasthala’s part – since we are members of the same university – and thereby damage the relationship she has worked so hard to build.
That inhibition is now removed due to the notification by BBC producer Chloe Hadjimatheou that she is planning to refer in a forthcoming BBC podcast, which will apparently be a second extra episode of her recent Mayday series, to research being undertaken by some other members of the Working Group on Syria, Propaganda and Media (WGSPM). (The first extra episode and episode 7 had already referred to issues raised by the group.) Although this author is a founding member of the group, its briefing notes are authored by others and are based on investigations that demonstrably rely on no consultation with Burgis-Kasthala. In fact, it is the sources consulted in those investigations that appear to be a particular subject of interest to Hadjimatheou, judging by her correspondence on the matter with group members. [While updating this paragraph I learned that Dominic Kennedy of The Times was preparing an article on the group’s CIJA investigation too.]
WGSPM findings also show that the ethics of CIJA’s director are open to more serious questioning than Burgis-Kasthala considers. (As did the European Anti-Fraud Office too.) This is a concern for a number of reasons, but not least because, due to the secretiveness of CIJA’s operations and the incentives to meet donors’ requirements, there is especial need to be able to rely on the integrity and probity of those in charge.
Insights available by other investigative methods
WGSPM’s investigative methods, which do not directly involve interviews with protagonists, have allowed some light to be cast on the dark side of CIJA’s operations. These more detached methods provide critical insights into how CIJA fits into the wider context of international criminal law – and politics.
To start with the Unique Selling Point of CIJA – its ‘high risk tolerance’ and ability to operate ‘under the radar’ – a basic question is how Western lawyers could be gaining access, in the first place, to materials in the possession of anti-government fighters in war zones in Syria. Burgis-Kasthala admits to being somewhat unclear how Wiley’s group came to have ‘people on the ground who were well-connected to rebel commanders’. Careful searching and critical scrutiny of information in the public domain allows an appreciation of the facilitating infrastructure that was in place. Channels of access have been maintained through a network of relationships in which Syrian opposition fighters interface with Western ‘stabilisation’ operatives. (These conceivably benefited from ‘rat lines’ already established for weapons supply as described by Hersh 2014 and Cockburn 2014.) Pivotal to the arrangements in CIJA’s case was the UK-funded company called ARK (Analysis, Research, Knowledge) directed by Alistair Harris,a former UK diplomat. Although run as a private business, ARK has been responsible for implementing key strategic projects in Syria. These include the ‘Free Syrian Police’ and ‘Syria Civil Defence’ (the White Helmets group that James Le Mesurier began training and supplying while he was still a co-director, with Harris, of ARK). Harris worked with Wiley, in 2011, to launch the operation that provided CIJA’s USP. The foundational role of ARK in creating CIJA has not generally been foregrounded by academic commentators; Harris himself has been noticeably reticent about publicity. ARK’s co-workers admitted to journalist James Harkin that ‘secrecy was paramount’ and that it was ‘intentionally opaque’ and ‘there are almost no public documents.’ (Harkin 2015) Nonetheless, a combination of open source research, FOI requests, and leaked documentation, allow a picture to be formed of how CIJA’s operation benefited from established networks of cooperation between Western governments and opposition forces on the ground.
For what purposes were Western states backing this secretive operation? Tracing the development of the idea that CIJA came to implement, McElroy (2012) identifies its political genesis: ‘An initiative, proposed by Foreign Secretary William Hague, to document evidence of crimes committed in the fighting for use in potential International Criminal Court trials, has been transformed into the multinational project to build Syria’s next governing class.’ From the outset the focus was politically selective as to who was to be held accountable: the activities of ARK dovetailed with those of the US State Department’s Office of Syrian Opposition Support (OSOS), ‘an organization established to aid opposition activists trying to bring down the Assad regime’, that Harris advised when it was being set up in Turkey (Vela 2012). The pursuit of accountability is but one prong of the overarching plan, as can be seen from the central involvement of the American former diplomat and war crimes prosecutor Stephen Rapp. Having helped secure initial US support for CIJA and being one of its commissioners, he has been campaigning more widely for changes in international criminal law that would lower the barriers to prosecution for atrocity crimes, wherever they are identified. He is thus committed to promoting innovative jurisprudence and hybrid courts as could be facilitated by winning wider acceptance of a principle of ‘universal jurisdiction’. As regards his interest in Syria, this is not confined to seeking accountability for war crime: he has been centrally involved in the project that led to the passing of the Caesar Act, which provides for sanctions on Syria, rather than justice or accountability. In short, the enterprise headed by Wiley was established as part of a wider, multi-pronged, operation sponsored by the governments of United States, UK and other foreign states. Its aim has been to prepare Syria for a transition to Western-friendly government, and to ensure supportive public opinion in the West for its objectives.
This casts interesting light on Professor Weiler’s interview question about the criteria of success against which to assess CIJA’s accomplishments. Burgis-Kasthala refers to the universal jurisdiction efforts ongoing in Europe and to the general influence of CIJA’s evidence on governments and NGOs. It is certainly the case that CIJA’s ‘Syria Files’ have figured prominently in lobbying efforts to use domestic courts to pursue war crimes in Syria. But a fuller answer would be somewhat orthogonal to concerns about international criminal justice. This would track value for client funders not within the sphere of justice but in the realm of strategic communications. The CIJA enterprise has had noticeable impact on public opinion: extensive publicity for CIJA’s amassing of reputedly portentous documentation, combined with oft-repeated claims of impending legal action, even if mostly remaining untried, have served to bolster an extensive information campaign aimed at challenging the legitimacy of the Syrian government. The existence of the documentation has been referred to in numerous articles and documentaries that take the same line on Syria; CIJA has also partnered with the movement – coordinated by Rapp – that has been so influential in presenting the Caesar photographs as alleged evidence of mass atrocities on the government’s part as to secure indelible recognition with the passing of the 2020 Caesar Act in the US. Accordingly, viewed in terms of the purposes of CIJA’s funders – a group of Western states particularly invested in the ‘stabilisation’ operations in Syria that are premised on the achievement of regime change – outcomes of hoped-for trials might be relatively immaterial given the effect meanwhile being achieved in the court of public opinion. The funding provided need not be considered disproportionate in relation to the overall budget Western governments have dedicated to related strategic communications operations (Cobain et al 2016; Curtis 2020).
A further potential line of impact for CIJA, as indicated by Burgis-Kasthala, comes from its document collection having been taken up for processing by the mechanism recently established by the UN known by the abbreviation IIIM, whose purpose is described in its full name: the ‘International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011’. The UN’s imprimatur was not unreservedly bestowed on this mechanism, however. Its creation was controversial, passed by a vote driven particularly by the US, with Ambassador Haley telling the UN that it would be ‘a valuable tool to hold the Assad regime accountable for its … repeated and ongoing use of chemical weapons’. To that end, the IIIM has entered a memorandum of agreement to work with the OPCW (the Organisation for the Prohibition of Chemical Weapons). However, once again, the goal here is highly politicised. The simple fact is that there is no uncontested proof as to who has been responsible for the use of prohibited chemicals in Syria. The one chemical event that the OPCW was able to investigate fully on site – in Douma, 2018 – is currently the subject of international controversy (Bustani 2020; Falk 2019). (And see also the Statement of Concern recently published in the name of numerous eminent figures by the Courage Foundation.) The OPCW’s own inspectors on the ground have denounced the official report issued by OPCW management as a complete misrepresentation of their findings which essentially reverses their implication as regards attribution (Maté 2020). More generally, and even assuming good faith and propriety on the part of everyone concerned, IIIM’s mission – as a ‘quasi-prosecutorial’ entity – is caught in a fundamental dilemma. As Ramesh Thakur puts it, ‘the politics of a permissive environment for punishing heinous war crimes works against the requirements of a forensic examination that can provide the necessary proof of culpability.’ The fact that the IIIM has an evident political agenda and a controversial normative framing makes it look unpromising not just to non-Western and non-aligned nations but also from a standpoint of independent analysis.
Conclusion
The introduction of innovation into the pursuit of justice, then, is not without its risks. In criminal justice the standard of proof is demanding because societies have learned throughout history that people can be deceived and that criminals can find ways to make other agents appear guilty of the crimes they have committed. We also know that false flag operations are a standard tactic for justifying acts of war. Hence a risk of innovating on the basis of a ‘responsibility to prosecute’ so as to alter standards of proof is that this undermines older principles that, even while sometimes impeding successful prosecutions, provide restraining safeguards that everyone ultimately relies on. Certainly, when political agendas are allowed to influence the workings of justice, justice is liable to be subverted. And the more surreptitious the influence, the more insidious may be the injustice that arises: when political influence is exercised through more or less covert support to private actors, the potential effects on justice are all the more troubling. The activities of the ‘justice entrepreneurs’ are conducted at arm’s length from states’ governments because of the problematic aspects of the enterprise. Arguably, it is the responsibility of academics to expose these to view rather than be drawn into complicity in keeping them ‘under the radar’.
[This article was originally submitted to EJIL:Talk! – the blog that hosted the interview with Burgis-Kasthala and is itself under the auspices of the journal (European Journal of International Law) that published the article being discussed. Unfortunately, it was rejected without review.]
Tim Hayward 
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