The legal machinery to put Syrian president Bashar al-Assad on trial for war crimes violations alleged this week by Human Rights Watch is readily available. But getting him into a courtroom is another matter.
by Chris Stephen in Tripoli
Allegations of torture and murder by the Syrian regime were presented in unprecedented detail by the New-York based rights group.
It outlined evidence from hundreds of witnesses that it believes points to the existence of a network of detention and torture centres scattered across Syria, and which points to a pattern organised from the presidential palace in Damascus.
“We are talking about the most appalling treatment,” said David Mepham, Human Rights Watch UK director. “Under international law there is this thing called command responsibility, the people who run (Syrian) security forces should be accountable.”
Command responsibility is the doctrine at the very heart of war crimes law, under which a commander is every bit as responsible for war crimes as the soldiers actually committing them.
Jails across the world are home to warlords and generals found guilty of similar offenses in war zones ranging from Congo and the former Yugoslavia to Rwanda and Cambodia.
The unfolding horrors in Syria are what the International Criminal Court, which marked its tenth birthday on July 1, was created to deter—or at least to punish after the fact.
But there is a problem: Syria is not a member of the ICC, so the only way for the ICC to get authorisation to investigate is if it is ordered to do so by the United Nations.
And any move by UN states to do so would likely be vetoed by Syria’s two allies China and Russia, who sit on the UN’s Security Council. Both Beijing and Moscow have refused previous attempts at the UN to bring the Assad regime to heel, and Human Rights Watch expects more of the same regarding war crimes investigations.
Friends in high places
“The Chinese and Russians have blocked this at (UN) security council,” said Mepham.
Even if the horrors persuade Beijing and Moscow to have a re-think, the involvement of the ICC does not guarantee that the guilty men will end up in a Hague courtroom.
In 2005 the Security Council ordered the ICC to investigate Sudan after the horrors of ethnic cleansing in Darfur. Since then, the court has indicted Sudanese president Omar al-Bashir for genocide, but Sudan has unsurprisingly refused to hand him over - and the ICC has no police force to go and get him.
Last year the Security Council again ordered the ICC into action over Libya. The ICC’s chief prosecutor Luis Moreno-Ocampo indicted three men for crimes against humanity: Muammar Gaddafi, his son Saif Al Islam and intelligence chief Abdullah Senussi.
Of the three Gaddafi is dead, Saif al-Islam is in jail in Libya, and Abdulla Senussi is under arrest in Mauritania. Libya insists it will hold trials on Libyan soil for al-Islam and Mauritania has yet to agree to hand Senussi to the ICC. In other words, even if Syrian leaders are indicted, getting them to court will require immense political pressure.
A second option for war crimes prosecutions will prove equally problematic: cases brought by individual nations, better known as universal jurisdiction.
More than a dozen states have their own war crimes processes, allowing prosecutions for the gravest crimes.
The reach of these processes was dramatically illustrated in 1998 when Chile’s former dictator, General Augusto Pinochet, was arrested by British police on a visit to London because of a Spanish extradition warrant.
Pinochet was subsequently allowed to leave the UK for Chile on health grounds, but not before Britain’s law lords had ruled that nobody, even a head-of-state, enjoys immunity from war crimes.
Al-Assad, as commander-in-chief of Syria’s armed forces, clearly has a case to answer over the torture, abuse and bombardment of civilian areas that have killed thousands.
By remaining in Syria, he will insulate himself from universal jurisdiction prosecutions and will expect China and Russia to continue to provide him with a shield against action by the ICC.
But should the Syrian president leave the country, or be forced to flee, prosecutors around the world may start issuing indictments. They are certainly not short of evidence.