Syria and the Arab Spring: International Criminal Law after a UN Veto

JiC welcomes Peter Quayle, a solicitor specialising in public international law and litigation and the author of an excellent blog on international law. In this guest-post, Peter considers the international legal parameters in responding to the ongoing crisis in Syria. Enjoy! 

A not-so-subtle and quite grim use of graffiti to suggest that some would like to see Syria's Assad meet a similarly grisly fate as Libya's Gaddafi

During Syria’s scorching summer, visitors to the Souk Al-Hamdiye in central Damascus appreciate the shaded cool. They also remark on the slender beams of sunlight that lance the corrugated iron roof and scatter in the gloom. These are resulting from the profusion of penny-sized holes left by bullets fired in 1925 during an unsuccessful uprising against French colonial rule. It was not until 1945 that Syria gained its independence.

Today’s opposition to President Bashar al-Assad needs be no less protracted. All the more so since the recent veto by Russia and China of a UN Security Council resolution urging adherence to a peace plan proposed by the Arab League. Yet, last year’s interdiction of Libya’s long time leader, Muammar Gaddafi, unsettled the regional presumption of exemption from UN-sanctioned international intervention. Hence the strong supposition that the situation in Syria is surely akin to Libya but the politics in Moscow and Beijing differs. But if we can discern important categorical differences of international criminal law, does this account for apparently inconsistent policy? And if international institutions are inactive, is international law irrelevant?

Five months ago, the UN’s Office of the High Commissioner for Human Rights (OHCHR), reported to the General Assembly on a fact finding mission sent to Syria to investigate breaches of international human rights law. The mission had found “a pattern of human rights violations constituting widespread or systematic attacks against the civilian population, which may amount to crimes against humanity.” It had evidence that murder, disappearances, torture and persecution were all instruments of a policy to brutally suppress political opposition. The OHCHR urged the Security Council to consider referring Syria to the International Criminal Court (ICC).

However, it is noticeable that this categorisation has not cohered before the Security Council. The action taken against Gaddafi’s regime under UNSC 1970 (2011) – arms embargo, travel bans, asset freeze, and referral to the ICC’s jurisdiction – considered that “the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity.” In contrast, the doomed recent resolution against Syria was confined to the condemnation of “continued widespread and gross violations of human rights and fundamental freedoms.”

A pro-Assad protester in Damascus (Photo: Muzaffar Salman / AP)

Typically, atrocity crimes – crimes against humanity, war crimes and genocide – engage the Security Council’s prerogative to maintain and restore international peace and security. Human rights violations, under the UN Charter, Article 2(7), more often than not, are merely considered to be “essentially within the domestic jurisdiction” of members states. Action against Gaddafi was binding under Chapter VII, “[a]ction with respect to threats to the peace, breaches of the peace, and acts of aggression.” Action as drafted against Syria was under non-compulsory Chapter VI, “Pacific settlement of disputes.” The resolution passed by the General Assembly, adopts the vetoed Security Council version, and is non-binding.

As defectors from Syria’s military have formed the rebel Free Syria Army (FSA), and hold districts in Homs and elsewhere, the resistance to Assad’s regime has become militarised. However, whilst shelling of FSA strongholds has ensued, it is doubtful that this yet constitutes the “protracted armed conflict between governmental authorities and organized armed groups” that is the standard for applying Common Article 3 of the Geneva Conventions and the law of an non-international armed conflict. In other words, without a “war” there can be no “war crimes”. Hence, as The Economist reports, the Syrian authorities emphasise the “terrorist” attacks by its opponents. They do so not only to politically delegitimize opposition, but because international human rights law regulates “situations of internal disturbances and tensions”, not the laws of armed conflict. And as Judge Howard Morrison QC has said, it is “important to realise that [the ICC] is not a human rights institution.”

To collapse international human rights into the laws of armed conflict and atrocity crimes may be well-intentioned. But the blurring of applicable laws enables Syria to shirk its responsibilities in the ensuing confusion. It is also dangerous to imply that censure is sufficient to deflect the Assad regime from its policy of paramilitary suppression. But need the law be dormant until repressive rule is halted? In 1943, the authors of the Moscow Declaration – Roosevelt, Churchill and Stalin – did not think so. Far from certain victory against Hitler’s Axis, the Allied leaders condemned the “ruthless cruelties” and “monstrous crimes” of the occupying Nazis.

Depiction of Assad as the 'grim reaper'.

The Declaration is most often referred to for its foreshadowing of the Nuremberg International Military Tribunal: “German criminals whose offenses have no particular geographical localization… will be punished by joint decision of the government of the Allies.” But more important is that whilst the United Nations solemnly declares and warns that those responsible for “atrocities, massacres and executions” will be tried and punished before the courts of liberated Europe, the Declaration starkly threatens the law-abiding not to join the lawless. An unmistakably Churchillian admonition:

“Let those who have hitherto not imbrued their hands with innocent blood beware lest they join the ranks of the guilty, for most assuredly the three Allied powers will pursue them to the uttermost ends of the earth and will deliver them to their accusers in order that justice may be done.”

International condemnation of internal Syrian repression is important. But so too is the policy of the protagonists themselves. No more so when international institutions are inactive. Whilst international criminal law applies even in the absence of reciprocity, should not recourse to law be a paramount policy distinction for those protesting repressive rule? There is no Russian veto for a Moscow-style Declaration by the Syrian opposition: respect for international human rights law and, in combat, the Geneva Conventions. And even, “most assuredly”, to join the International Criminal Court, and if needs be, deliver up the accused so that justice may be done.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Human Rights, International Criminal Court (ICC), Syria, UN Security Council. Bookmark the permalink.

2 Responses to Syria and the Arab Spring: International Criminal Law after a UN Veto

  1. Mathias Holvoet says:

    Very interesting post. Wouldn’t be “wiser” for the Syrian government to call the insurgents in Homs for instance armed groups instead of terrorists, because then they have the right to kill under the law of armed conflict. We here stories that there have been 7000 persons killed since the start of the uprising, but how many of these persons are really innocent civilians, and how many of them are persons that have engaged in fighting against the Syrian army?

    • Peter Quayle says:

      Mathias – thank you for your comment. You focus on an important point: although in an armed conflict non-combatants are entitled to protections, there is however licence to use lethal force against opponents. This would then legitimize FSA attacks on police stations and army barracks etc. and conversely Syrian army assaults on FSA held enclaves. It is noteable that recently revealed ICRC involvement in brokering a “humanitarian ceasefire” for Homs does not categorise the militarised confrontations. I was struck by a BBC News report today stating: “Unarmed protesters are now being backed by rebel fighters who have defected from government forces.” This would seem to sums up the ongoing complexity you highlight.

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