Here’s how the world can hold Syria responsible for its crimes
Torture is what defines the regime, write Payam Akhavan and Andrew Stobo Sniderman.
After Bashar Assad suffocated children with poison gas in April, Donald Trump retaliated with Tomahawk missiles. But Syria’s victims deserve more than occasional vigilantism.
The crimes continue: Photos released by the U.S. State Department suggest the Syrian regime is incinerating the bodies of thousands of murdered political prisoners. The Assad government must face judgment by an international court.
In theory, Assad and his top generals should be tried by the International Criminal Court for systemic war crimes and crimes against humanity. In practice, the Russian veto at the United Nations Security Council has made that impossible.
But there is another way, with another court. Syria could be put on trial for torture before the International Court of Justice (ICJ) at The Hague in the Netherlands.
Why torture, and why the ICJ? Torture is the signature crime of the Assad regime. Hundreds have been gassed, but tens or even hundreds of thousands have been tortured, often to death. There are so many prisoners-turned-corpses that the regime has taken to mass incineration.
The spark that ignited the war in February 2011 was the gruesome torture of teenagers for painting anti-Assad graffiti on their school walls in Daraa.
Since then, the rape, sadistic treatment and disappearances of countless prisoners have been documented by brave local and international investigators, as well as fastidious Syrian officials who have left a meticulous paper trail of heinous crimes.
Syria is a party to the UN Torture Convention, a treaty that commits states to abolish torture and punish torturers. Syria’s hypocrisy matters, because Article 30 of the treaty allows other state parties to bring a dispute to the ICJ. This provides a way for an outraged state to challenge Syrian leaders for their odious crimes without the obstacle of a Security Council veto.
The ICJ has been the “world’s court” since 1946, but it is not a criminal court. It cannot issue individual arrest warrants or impose jail sentences. Rather, the ICJ holds states accountable, with the legitimacy to speak justice to power.
The evidence of Assad’s systematic use of torture is overwhelming. This evidence belongs in a courtroom, for all to witness and condemn. The ICJ would provide a unique forum for exposing evidence of atrocities in an authoritative judicial process.
To be sure, lawyers and judges work slowly and methodically, and a final judgment would take years. The ICJ is more like a righteous tortoise than an avenging missile. But the case of the former Yugoslavia has shown that so long as there is a long-term commitment to accountability, those in power today may one day face justice as their political fortunes change.
ICJ court proceedings followed by judgment would increase pressure for additional international access to Syrian prisons by the likes of the Red Cross. A ruling could also name names and further stigmatize the Syrian torture apparatus, thereby increasing the likelihood that an eventual post-conflict transition will exclude some of the worst.
At the very least, a legal hearing dignifies the stories of survivors and the dead. This approach would offer the closest thing to a day in court that most Syrian victims of torture and their families will ever see as they seek to heal their wounds.
Some national courts in Europe have opened criminal cases against mostly low-level Syrian perpetrators. The more of these cases, the better — but the root of the evil, the Assad leadership, should be tackled for systematic crimes against humanity by an international court.
All it takes is a country bold enough to put their name forward v. Syria.
Payam Akhavan is a professor of international law at McGill University and a former UN prosecutor at The Hague. Andrew Stobo Sniderman was the human rights policy adviser to former minister of foreign affairs Stéphane Dion.
The ICJ is more like a righteous tortoise than an avenging missile.