The use of lethal force to disperse demonstrations is within a government’s prerogative and is not an international crime. But months of a persistent and brutal crackdown, the likes of which are occurring in Syria, which, according to US Secretary of State Hillary Clinton, has left some 2,000 people dead since anti-government protests began in March, does amount to a crime against humanity.

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By Jake Taylor*

This is contrary to Article 7 of the ICC Treaty, if multiple acts of murder or persecution are committed, pursuant to state policy, “as part of a widespread or systematic attack against any civilian population.” The deliberate decision to use tanks, machine guns, and snipers against unarmed crowds repeatedly over the last few months is clear evidence of exactly such a crime. But the question remains – is now the time for the Security Council to refer Bashar al-Assad and certain members of his family to the International Criminal Court?

Not above the law
Indicting Assad and his cohorts sends a powerful message – political leaders, elected or not, are not above the law and cannot act with impunity.

However, it is arguable that now is not the right time for such a manoeuvre. The indictment against Libyan leader Muammar Gaddafi has strengthened Gaddafi’s resolve to continue fighting NATO-backed rebels and to drive a hard bargain in talks aimed at ending the crisis in his country.

It has meant that NATO countries have been forced to drop their demand that Gaddafi leave Libya as part of any deal. The indictment means he has nowhere to go without running the risk of arrest and therefore little choice but to fight on in the absence of a deal that guarantees him immunity.

A decision to indict Assad may well be similarly counterproductive, as the priority has to be ending the violence in Syria as soon as possible. That is easier said than done and more blood is likely to flow before the situation in Syria is resolved.

Crime against humanity
This is not to say that Bashar al-Assad will not and should not face justice at some point. Stephen Rapp, the US ambassador in charge of investigating war crimes, last month stated that the killing of Syrian civilians demanding democracy is a “crime against humanity”. However, as Rapp concedes, there is “not sufficient support in the UN Security Council even to get a motion denouncing it. But we are hopeful that as people see what’s happening there will be greater need to have accountability.”

Some progress has been made in this regard – only days ago the Security Council condemned the widespread violation of human rights in Syria and the use of force against civilians by the country’s security forces, calling for an end to the violence and urging all sides to act with restraint and refrain from reprisals, including attacks against State institutions and calling for “those responsible for the violence should be held accountable”. However, as the brutality of the Syrian government’s crackdown on any form of dissent continues to unfold on news screens across the world on a daily basis, it is clear that urgent action is required, whether or not this should include an indictment at this stage is open to debate.

* Jake Taylor is an intern at the ICTY.