There has been much debate about the merits or otherwise of forcible intervention to stop the killings in the Syrian crisis. This has never looked likely, partly because of the Russian and Chinese veto in the UN Security Council but also because of the inherent difficulty of the task, not least given the fragmented nature of the Syrian opposition. Given the impotence of the international community to prevent mass atrocities against segments of the civilian population is there any hope that the threat of being held to account will encourage the regime to show restraint, or are they free to continue to act with impunity?
On Friday 2 March the UN Secretary-General Ban-Ki-Moon accused the Syrian Government of “systematically attacking its own people”. He said the regime’s assault on Homs the previous day had been “atrocious”; civilian losses had clearly been heavy and the UN continued to receive “grisly reports of summary executions, arbitrary detentions, and torture”. This was an important statement from the SG, marking as it did the end of any attempt at neutrality in the crisis.
The following day UK Prime Minister David Cameron accused the Assad regime of “butchering its own people” and warned: “We will make sure, as we did in Serbia, that there is a day of reckoning for those responsible…I have a clear message for those in authority in Syria: make a choice, turn your back on this criminal regime or face justice for the blood that is on your hands”. Former UK Foreign Office Minister and one-time Deputy UN Secretary-General Mark Malloch-Brown also claimed: “There will be accountability for this”.
Throughout the crisis the Syrian Government has claimed it is putting down acts of terrorism within its own jurisdiction, which in law it is entitled to do. However it must still abide by international human rights law, which among other things requires it to provide proper protection to the civilian population. Thus, in the face of increasing violence in Syria from March 2011 onwards the UN Human Rights Council appointed an independent commission “to investigate all alleged violations of international human rights law”. In its second report, published on 22 February 2012, the commission found that “The [Syrian] Government has manifestly failed in its responsibility to protect its people… its forces have committed … widespread, systematic and gross human rights violations.”
An important subset of international human rights law (although it has a longer history) is international humanitarian law, or the law of armed conflict. This only applies in situations of armed conflict, which may be at either international or national level. Despite the violent images that we have seen on our television screens the Syrian crisis does not (yet, at least) come into this category. It is significant that the independent commission “did not apply international humanitarian law for the purposes of the report” on the grounds that “it was unable to verify that the Free Syrian Army (FSA), local groups identifying themselves as such or other anti-Government armed groups had reached the necessary level of organization.” (Para 13)
In other words, the specific laws of war would appear not to apply in Syria at present, although this could change if the opposition was able to unite to the extent that it could fight a full-blown civil war against the regime. This has some implications in terms of the conduct required of the parties to the conflict. It also means no-one can be found guilty of war crimes – by definition if a war is not taking place. However, it makes no difference in terms of a government’s responsibilities to its own people: human rights law still obtains. The concept of the Responsibility to Protect, adopted by the UN General Assembly in 2005, is designed to prevent or arrest four kinds of mass atrocity crime: genocide, ethnic cleansing, war crimes, and crimes against humanity. Even if the first three did not apply in the Syrian case, the fourth certainly could. From this flows the possibility of a referral to the International Criminal Court (ICC) should there be prima facie evidence that crimes against humanity have been committed.
But unlike the Libyan case, where an ICC referral of the Gaddafi regime was part of UN Security Council Resolution 1970, no consensus exists within the Security Council for a similar referral with regards to Syria. This is not the only way that a case can come before the ICC (it may also be referred by a State party or be initiated by the Prosecutor on the basis of information received) but it is undoubtedly the fastest route. Thus it will certainly be some time before the warnings about accountability issued by David Cameron and Mark Malloch Brown are substantiated. In the meantime the sufferings of the civilian population of Syria will continue. As usual, it is the politics that matters most.
