Prosecuting Syrians for War Crimes Now

5 Jun



            A major undertaking of the victorious powers in World War II was to impose individual criminal accountability upon political and military leaders for alleged crimes committed during wartime before a tribunal convened by the victors that gave those accused a fair opportunity to present a defense. This application of this idea of accountability to German and Japanese surviving leaders at trials held in Nuremberg and Tokyo was hailed at the time as a major step in the direction of a ‘just peace.’ International law was treated as binding upon sovereign states and those that represented the government, conceived to be a major step in the direction of a global rule of law. The final decisions of these tribunals also produced a narrative as to why World War II was a necessary and just war. Such an outcome was both a vindication of the victory on the battlefield and a punitive repudiation of those who fought and lost. Significantly, this criminal process was formally initiated only after the combat phase of the war had ended and Germany and Japan had surrendered.


            There were skeptics in 1945 that whispered ‘victors’ justice,’ and insisted that this ‘Nuremberg experience’ was a partisan exercise in truth-telling. Above the courtroom hung an invisible sign reading ‘only losers need enter here.’ The Nuremberg goddess of ‘war justice’ wore no blindfold, assessed with one eye the crimes of the losers and averted her other eye so as not to see the crimes of the winners. In the actual trials those whose criminality was being assessed were not accused of any crimes that resembled the practices of the winners, and were not allowed by the tribunal bring up in their defense any of their alleged crimes.


            Many wanted to overlook this flaw, and move on to create a justice system that would indeed operate on the basis of the nature of the act as criminal or not, and not make criminality depend on the identity of the actorBut moving toward the ideal of equality before the law has not been easy. It requires elevating international criminal law above the precepts of geopolitics. Yet the impulse to do so in form has surfaced strongly in the aftermath of the Cold War, but we have yet to see any corresponding substantive transformation that must occur if equals are to be treated equally in international criminal law.


            Against such a background, the attempts to hold individuals, whether acting on behalf of governments or insurgencies, individually accountable for war crimes is treated as a core element of global justice. Since the International Criminal Court (ICC) was established in 2002, an institutional mechanism exists on a global level by which to apply international criminal law in an objective and authoritative manner. Further there exists convincing proof that horrifying atrocities have been committed in the course of the Syrian civil war, principally by the government and armed forces of Syria, and to a far lesser extent by various factions among the fragmented opposing rebel forces. In these circumstances, it would certainly seem appropriate to charge both Syrian government officials, including military commanders, and members of the insurgent opposition, with such crimes.


            France presented a resolution to the UN Security Council on 22 May calling upon the ICC to investigate allegations of war crimes in Syria, and to proceed with prosecutions to the extent possible. The resolution was supported by a 13-2 vote, yet it failed to pass because the two dissenting votes were cast by Russia and China, countries enjoying a right of veto. As might be expected, there have been angry explanations of the result given by both sides. According to the Russian delegate, the French initiative was nothing more than ‘a publicity stunt’ that would hamper, or even preclude, the difficult search for a diplomatic end to the strife. The Western reaction, significantly endorsed by the UN Secretary General’s office, declared that such a use of the veto was ‘irresponsible,’ even ‘disgraceful.’ It amounted to a de facto grant of impunity to the worst perpetrators of state crime active on the planet at this time.


            I believe that both of these contrasting reactions are understandable, and can be given a qualified endorsement despite seeming to contradict one another. The Russian reaction reflects a view that the main motivations for such a resolution is to weaken the legitimacy of the Damascus regime in the midst of an unresolved struggle for control of the country, and in this sense is better interpreted geopolitically as an irresponsible propaganda move rather than as a genuine attempt to promote criminal justice. As well, it has been Moscow’s insistence all along that the only way to end the violence in Syria is by way of diplomatic compromise. Thus, any attempt to indict Syrian leaders as war criminals while the fighting persists weakens the already dim prospects of resolving the conflict by diplomacy. It gives Assad and other Syrian leaders, the circle of those that likely would have been indicted, strong incentives to rely on combat rather than take their chances with diplomacy.


            The French approach, strongly supported by the Western powers, especially the United States, focuses on the clear evidence of criminality attributable to the Damascus regime. Such behavior deserves to be formally criminalized, and the fact that the Assad regime remains in power enhances the urgency of doing so. There is no need to look beyond these facts, and taking such action may increase the pressure on the Syrian government to seek accommodation.


            Further along these lines, the argument that recourse to the ICC will end diplomatic efforts to end the violence is specious. Conventional diplomacy has been given many chances, and has failed. They claim that diplomacy has been repeatedly tried and failed, including reliance at the highest levels on the good offices of the UN and Arab League through the determined efforts by Special Envoys, first, Kofi Annan and the Lakhdar Brahimi. To act as if diplomacy might succeed in the future is mainly a diversionary tactic to discourage taking immediate steps that might bring the war to an end in ways that are helpful to the aspirations of the majority of Syrians. The supporters of the French resolution argue that activating the ICC will produce public indignation, swing support to the insurgent side, and produce a more politically and morally desirable end game to the conflict by discrediting the Damascus regime and empowering the opposition within Syria, the region, and the world. There are many uncertainties exposed by this debate. It is difficult to reach a clear conclusion as to which side is more persuasive, but there are a series of considerations that should be taken into account, and add weight to those who voice skepticism about the French initiative.


            Motivation. There are reasons to think that this effort at this time is mainly an expression of frustration and desperation, and as such a misuse of the ICC by Western powers. True, the crimes of the insurgent rebels as well as those of the Syrian government were included in the proposed resolution, but the motivation was to delegitimize the Damascus government. Yet the rationale for initiating a criminal investigation directed at the leadership of all participants in the midst of a civil war for the control of the country seems like a misdirected move that is made in the face of the failure of earlier Western efforts to intervene sufficiently on the insurgent side .to produce regime change

            Timing. To use the ICC in the midst of an ongoing civil war in Syria is to take sides, and thus interfere with an ongoing internal struggle for control of the state and society. Mentioned above, even the Allied Powers in World War II waited until the guns fell silent before initiating any criminal process. As such, acting in the present setting interferes with the right of self-determination enjoyed by the people of Syria. Yet since there has been already considerable interference through funding and material support, the preconditions for self-determination do not exist, making an end to the violence that has been so devastating for the population of the country a primary goal. This makes it seem that the most important question to ask is whether criminal indictments while the war rages is likely to hasten or delay an ending of the conflict. And since neither side has shown the ability to prevail, the Russians seem right in their insistence that despite disappointments with earlier efforts, diplomacy continues to be the only path forward, although it is admittedly narrow.


            Justice. Is justice served when the authority of the ICC is invoked as a political instrument to influence the outcome of a civil war? There are reasons to worry about the discrediting impact of double standards. Why was there never any initiative to pursue leaders of the United States and the United Kingdom during the course of the Iraq War, which also included many incidents that seemed to qualify as crimes against humanity? This question takes on greater weight when added to earlier criticisms of the profile of the ICC, which has pursued a variety of sub-Saharan African leaders, but few others. It is also relevant to recall that the Serbian leader, Slobodan Milosevic, was indicted in the midst of the Kosovo War in 1999 undertaken without UN authorization by NATO, again seemingly motivated by the urge to strengthen public support for the justness of a legally controversial military effort to end Serbian administration of Kosovo. Again in the NATO led military operation against the Libyan regime, the ICC issued arrest warrants for the Qaddafi leadership while NATO planes were bombing Tripoli. In effect, the allegation being made by critics of such war crimes prosecutions is that the whole undertaking has been politicized in ways that lead to a selective application of the law that seems inconsistent with claims of justice. In effect, the criticism of Nuremberg still applies—only losers and the weak are accountable. For the others, impunity.


            Feasibility. The unlikelihood of obtaining personal jurisdiction in relation to the principal perpetrators of war crimes in Syria, especially Bashar al-Assad and major political officials and military commanders, makes the claimed rationale for seeking indictments at this stage also suspect. Proceeding now seems to have as its main justification a means to add moral weight to the position of pro-insurgency governments that something more should be done to stop the criminality of the Assad-led government. Reinforcing this reasoning is a consensus that since military intervention is not feasible and diplomacy has failed, the only option left is to charge Syrian leaders with crimes against humanity. The ICC provides a venue to mobilize pressure for giving additional help to the rebels, and at the same time depriving the Damascus government of whatever is left of its legitimacy. The fact that the French resolution calls also for an investigation of possible crimes against humanity committed by the opposition, while not being frivolous, is nevertheless certain to receive far less attention in the event tha the UNSC had given the ICC a green light.


            There is a serious question as to whether it is appropriate to use the ICC to gather evidence and prepare an indictment in circumstances where prospects of prosecution are remote and an ongoing struggle for control of the Syrian state remains unresolved. Such limitations also would seem to reinforce concerns about the timing of this initiative. It makes recourse to ICC not only ineffectual as a means to pursue criminal justice, but damaging to the credibility of this fledgling international institution that was created, it should be remembered, to overcome the vagaries of geopolitics, not to serve as their instrument for engaging in maneuvers.


            Concluding Comment. There are two intertwined concerns: First, whether seeking criminal indictments of Syrians accused of crimes against humanity is on balance helpful or harmful in relation to the search for peace that has so far proved fruitless. This issue should be considered in relation to prospects for resolving the devastating conflict in Syria that has already lasted for more than three years.


            And secondly, whether such recourse to the ICC would strengthen or weaken this judicial institution, and its need to overcome the strong impression of operating on the basis of double standards in relation to criminal accountability. So far all efforts to use the ICC in response to crimes alleged against Western countries have been rebuffed, and Western leaders have enjoyed impunity and have minimized their own participation in the activities of the ICC except when it serves their interests in going after adversaries. A tiny opening is the recent indication that the ICC is formally investigating criminal charges relating to the abuse of Iraqi detainees by United Kingdom occupying forces in the years after 2003. Perhaps, the times are changing, after all!


11 Responses to “Prosecuting Syrians for War Crimes Now”

  1. Gene Schulman June 5, 2014 at 12:34 pm #

    Richard, this is an excellent summation of the attempt by Western powers to unseat and delegitimize the Assad government in Syria. Whatever one may think of that government, and I have no intention of defending it, it was (is) legitimate. As legitimate as any other government, and Assad had (has) the right to defend his country against foreign insurgents attempting to overthrow it. He would be remiss as a leader if he didn’t. As horrific as this civil war is, it must be played out and brought to an end by the participants themselves. Outside interference by the Western powers, who are not innocent bystanders, and who have their own reasons to bring regime change, only exacerbates the suffering of the Syrian people.

  2. Albert June 5, 2014 at 6:06 pm #

    What is the rush here? When are the criminals of the illegal Iraq war brought to justice? Let`s line up all the alleged war criminals, that qualify for indictment and bring them to the ICC in chronological order. That is, when the west can really claim to be striving for justice, but what we see now is selective justice, which is no justice at all.

    • Kata Fisher June 6, 2014 at 11:23 am #

      “Broken ground and a double-edged sword”
      “I am in your time…tiling of the waters and a double-edged sword”

  3. rick sterling June 5, 2014 at 11:18 pm #

    1) There are statements about the reality vs the propaganda of these urban areas taken over by rebels. Here is one by a Jesuit priest form Homs who was tragically murdered a week before the rebels left the Old City of Homs

    2) The elephant in the room is this:

    Syria is not primarily a civil war. Rather, it is principally an external war of aggression. The HQ for the US preferred factions are in Turkey. All the groups are paid and supplied by one or another: initially Qatar with the MB, then Saudi Arabia and the US, France, Britain and other “friends” supplying and paying salaries to Nusra, Islamic Front, FSA etc etc. A March 2014 video documentary actually describes the terrorist leaders “commuting” from Turkey into Syria for their actions.

    3) Has there ever been a war without atrocities, horrible retaliations and innocent civilians killed? I doubt it. That is why the supreme crime is INITIATING war. There is now much evidence that the US in league with France, Britain, Saudi and others did this. Hersh wrote about the US campaign in 2007 and there is evidence of armed groups provoking the conflict in Syria, killing people on both sides, right from the March 2011 start.

    Syria and its people and government are basically defending themselves. From having been there in April and seeing the recent election, that is how most Syrians see it. Why is this not being discussed as a legal issue? It’s not even hidden. It’s public information that Saudi Arabia and USA are paying the salaries of the mercenaries!

    The US in league with others have devastated Afghanistan and Iraq. They are trying to do the same with Syria. Not with boots on the ground …. but via mercenaries and fanatics, just as they did in Nicaragua and Afghanistan.

    If the ICC is worth a thing, this needs to be seriously discussed. Otherwise people correctly dismiss it as a tool of foreign powers.

    • wingsprd June 7, 2014 at 12:01 am #

      Thank you Rick Sterling for your enlightening comment. Confirms what little I thought about this conflict.

  4. Kata Fisher June 6, 2014 at 12:18 pm #

    I have a reflection:

    They are accused by Church and Spirit.
    They killed David in Iraq.
    Those who have killed David in Iraq are not saved nor ever will be from the judgment of God, and their seed and seeds seed is cut off with them, as well. They do not receive forgives without Baptism in God’s Spirit not now and not ever. Neither their seed nor will they.
    These, who are accused and are not guilty and or were in coercion against their conscience, have right for Vatican lawyers who are Church-Charismatic representation during this trail.

  5. Rick Sterling June 6, 2014 at 2:20 pm #

    Sieges by Syrian army are one of the principal examples used by opponents and those calling for “war crime” trials against Syria. The charges need to be seriously examined rather than being blithely accepted.

    The link in my previous posting apparently does not work.. An alternate link to same article is below. It shows some of the reality of the siege. Very different than the image portrayed in HRW / State Dept / Feltman-UN propaganda.

  6. against hypocracy June 8, 2014 at 11:53 am #

    You, a member of the council on foreign relations, leave the criminal prosecution of American, Israeli, Britain, French war criminals aside and go after the victims. Syria has been invaded by the CIA trained terrorists and their allies. Any government would have been reacted to force these terrorists out and protect the country from the western PLOT.
    You sat next to a CIA asset, PAYAM AKHAVAN, a liar, member of Halifax International Security,

    who supported Yugoslavia booming, was a prosecutor at the ICC against Milosevic, Supporter of Libya bombing, Syria bombing and Sudan bombing and partition working closely with ‘save Darfur’, headed a show called “Iran tribunal” a CIA funded- directed by the Zionists –Kurds- MEK, to demonize Iran and prepare the ground for further action using member of MEK and Kurdish terrorists for regime change to help the US policy towards “world government”, new world order.
    Payam Akhavan worked closely with a rabid Zionist, Irwin Cotle, supporter MEK, along with Alan Dershowitz and other neocons Richard perle to be used against Iran.
    No country is willing to compromise its sovereignty including Syria. The reasons behind the CIA wars are to occupy Syria and partition the country for the interest of Israel and “global government”, new world order where people HATE. We never allow that to happen. The CIA funded ‘rebels’ and their supporters must be arrested to be charged with war crimes against humanity, but ICC IS A WESTERN TOOL, like Payam Akhavan, who goes after Yugoslavia, Libya, Syria, Iran but leave his own country, Canada, US, Israel, Britain, France, for example, alone, since he works for the empire not the people.
    Syria has been invaded by the US- Israel -Turkey trained terrorists, and funded by the reactionary Arab countries such as Saudi Arabia and Qatar to bring down a legitimate government. You call the Syrian government, a brutal regime, but refuse to use the same term for Obama regime or Netanyahu regime, which is MORE SUITED. It is laughable that you not only leave all these criminals off the hook, but are working closely with Endogen, a war criminal, and Turkey where the HIGHEST NUMBER OF JAINLED JOURNALISTS IN THE WORLD are located. You don’t use ‘Endogen regime’ engaged in number of FALSE FLAG OPERATION on behalf of the US, including CHEMICAL ATTACK, to frame Assad and then you repeat in your website. DON’T YOU MR. FALK?
    You believe in “American exceptionalism, a racist mentality. That’s why YOU asked people to go and vote for a war criminal, Obama, again. Now, you are going after the victims of Zionism and imperialism and praising the war criminals in Washington by repeating their lies, such as “Bashar Assad massacre his own people” where today is revealed that those who accused Assad, themselves are responsible for the chemical attack to FRAME ASSAD GOVERNMENT TO BRING IT DOWN. Turkey and the CIA trained terrorists, you call ‘rebel’, conducted the chemical attack with US blessing, like other FALSE FLAG OPERATION around the world to construct “war on terror” a HOAX to invade other countries by fooling the public. You also worked with another CIA asset , NADER HASHEMI, who like Payam Akhavan supported the military attack on Iraq, on Libya that killed more than 50000 people including Qaddafi family, demanding a military attack on Syria, and of course on Iran for regime change.
    You are a member of the council on foreign relations where war criminal Hillary Clinton, Leslie Gelb –architect of Iraq partition, neocon Denis Ross, and people like them promoting war against Islamic countries to topple their governments for the interest of Israel and the “world government” that you like and promote.
    Long live Syria and Syrian people, long live Bashar Assad who has just been elected for next 7 years. Dr. Bashar Assad received MORE VOTES than Obama in 2012. Down with Syrian people’s enemies.
    Leave Syria alone.

    • Kata Fisher June 9, 2014 at 8:16 am #

      I have a reflection about Syria:

      Syria has to manage foreign / illegitimate missionaries in the Land, as soon as possible.

      They cannot have invalid church-mission in the Land, and imminently has to manage and restrict that.

      They have to implement missionary Laws in Syria. A mission permit cannot be given to just to anyone (individuals and /or individual denominations/churches) without Syria’s Church council and oversight, who can and will discern if individuals who think that have received a valid call from God to go to Syria have received a legitimate call, and then under circumstances allow or reject the permit for a mission.

      In general, Syria has Church that is planted and does not need another denominational mission/s in the Land. Occasionally, Church Charismatic that is valid (any denomination) may want to come to see what is going on – but they will have to prove that they are a legitimate order of Church-Charismatic, already are in a legitimate calling in order to be allowed for a mission in the Land.

      If they are called to do any Church work they will do that within spiritual authority of the Syria’s Church, and not their own. They have to come to the Church, first.

      In general, the Church mission can and cannot be hindered. Meaning, you can not restrict the Spirit, but anything else you legitimately can.

      Those who think that Syria’s Church is invalid/illegitimate and /or ineffective and that they need to plant their own are just dead-wrong.


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    […] Palestinian cause and who is very respected in the hinterlands of the “democratic west”. Falk says that one cannot refer the Syrian regime to the ICC for all the crimes the latter committed by […]

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