World must act now on Syria
Ample evidence exists to convict Syrian president Bashar al-assad, and Islamic State and Syrian opposition leaders of war crimes. But the United Nations has failed to establish a special tribunal for Syria or refer the situation to the International Criminal Court. The Council in the past has taken such actions, but Russia’s veto has blocked all attempts regarding Syria.
Russia has used its veto power — 10 times so far — to protect the Syrian regime, the latest one on Nov. 15, when it blocked the extension of a U.N. panel investigating the use of chemical weapons in Syria.
Collection of evidence by the U.N., human rights organizations such as Human Rights Watch and Amnesty International, along with other NGOS (including some in which my former students are working), has produced one of the bestdocumented accounts of such crimes in history. Ever since its inception in 2011, the U.N.’S International Commission of Inquiry on the Syrian Arab Republic has been investigating all alleged human rights violations and crimes perpetrated there. It has issued multiple reports based on interviews with refugees and defectors, Skype calls within Syria, and secreted documents and postings on social media. In its report on Oct. 27, the panel had concluded the Syrian military responsible for using the deadly nerve sarin gas in an aerial attack in North Syria, killing 100 villagers.
Treaties and customary international law apply to the Syrian conflict. The Rome Statute of the International Criminal Court, the four Geneva Conventions and their two Additional Protocols, a host of treaties on the use and the prohibition of certain weapons, and the international Committee of the Red Cross’ work on customary international law provide the necessary rules and guidelines.
War crimes by the Syrian government include deliberate attacks on civilians, which are indiscriminate and disproportionate, sometimes with chemical agents, and the use of barrel bombs and cluster munitions, and incendiary and chemical weapons. Human Rights Watch has reported arbitrary arrests, prolonged detention, unfair trials, and systematic torture, causing many deaths. Lengthy sieges by government forces trapped civilians, barring humanitarian access to essential goods and services. The Islamic State has committed genocidal acts against Yazidis and has carried out direct attacks on civilians and perpetrated numerous unlawful killings. All this has resulted in more than 300,000 people dead, 6.6 million displaced within Syria, and 4.8 million forced to seek refuge abroad.
Since the Russian veto has paralyzed the U.N. Security Council, the General Assembly created a legal team to collect and preserve evidence of crimes that could be used in war crimes trials.
As there is no tribunal and no referral to the International Criminal Court, is there any other way to ensure accountability for all these crimes? The choices are between the creation of an ad hoc tribunal by an international agreement which could authorize retroactive operation, and investigation and prosecution by national courts. International law experts have already drafted a statute for such an ad hoc tribunal, for which the U.S. House of Representatives and the International Commission of Inquiry have already expressed support. A regional tribunal in Europe or another region such as the Middle East is an alternative.
Yet another alternative is for national courts to use the international law principle called universal jurisdiction over international crimes of such egregious nature that any nation could prosecute the perpetrator, with or without any national link to a suspect, victim, or witness, as usually required for prosecution.
In October, Sweden convicted a member of the Syrian military of a war crime. Other countries that have opened Syrian war crimes investigations include Germany, France, Switzerland and the Netherlands, and Spain is considering this possibility.
We have taken too long since the Nuremberg Trials to end war crimes with impunity. The international community must marshal the political will to act now and ensure that those who have committed war crimes and crimes against humanity in Syria do face justice and are held accountable.
Ved Nanda (vnanda@law.du.edu) is Evans University Professor and director of the Ved Nanda Center for International and Comparative Law at the University of Denver Sturm College of Law.