Aleppo University Faculty of Law, Aleppo, Syria
Contrary to most recent media reports, and frankly to my surprise, forces defending both rebel controlled East Aleppo as well as government controlled West Aleppo during the unrelenting slaughter of this savage war, do sometimes appear restrained in their attacks.
This observer does occasionally sense some concern among belligerents for civilian casualties. But the few eye-witnessed cases of battlefield restraint pale when compared to the heavy and seemingly indiscriminate bombardment of civilian areas.
Global demands to stop the bloodshed in Aleppo and across Syria have reached a crescendo unseen since the days of the 2003 U.S. non-UN sanctioned invasion of Iraq. UN Resolution 2139 recently demanded access to besieged areas in Syria and compliance with International Humanitarian Law including safe passage for civilians from conflict zones and the unimpeded passage for aid workers into those zones. These demands continue to be flagrantly ignored.
The United Nations humanitarian agency (OCHA) declared this week that eastern Aleppo now met all three criteria used to define an area as besieged in violation of International Humanity Law. The three criteria are military encirclement, lack of humanitarian access and the lack of free movement for civilians. East Aleppo becomes the 18th UN designated besieged area in Syria according to the U.N.
According to and October 5 UN Office for Coordination of Humanitarian Affairs Update on Aleppo, half of the estimated 275,000 Syrians intensely besieged in eastern Aleppo want to flee due to the non-stop intense air campaigns targeting hospitals, schools, markets, Mosques, Churches and other civilian institutions as food supplies run very thin. The UN claims that as cold weather approaches, people are being driven to burning plastic for cooking fuel as the blocking of cooking gas makes it essentially impossible to cook what little food remains. The same UN report documents countless civilians rummaging through the rubble of destroyed buildings to salvage any flammable material that can be used for cooking. Food prices in Aleppo continue to skyrocket and siege blocked market inventories are near depletion. The UN reports that this week mothers are tying ropes around their stomachs or drinking large amounts of water to reduce the feeling of hunger and prioritize food for their children. Civilians are walking up to 2 km to fetch water, which is available only from boreholes, and the water situation across the city is “of grave humanitarian concern”, the UN claims. The causes of these conditions are war crimes.
The United States and other Western countries claim Moscow and Damascus are guilty of war crimes in deliberately targeting civilians, hospitals and aid deliveries for more than 250,000 people trapped under siege in Aleppo, but the Syrian and Russian governments insist they only target militants.
The war in Syria increasingly postulates a war without end and without humanitarian law in which civilians are not just caught in the crossfire or are somehow collateral damage—Syrians are increasingly being besieged, targeted, starved and used as weapons of war.
Speaking recently before the UN General Assembly, the UN Secretary General Ban Ki Moon drew a bleak but accurate picture of the Syrian crisis: “Present in this hall today are representatives of governments that have ignored, facilitated, funded, participated in or even planned and carried out atrocities inflicted by all sides of the Syria conflict against Syrian civilians. Many groups have killed innocent civilians and are suspected of committing war crimes …”
Despite the growing international demand for an immediate ceasefire and full accountability for war crimes in Syria, there are plenty of sectarian and other partisans, as well as paid political water carriers on both sides of the conflict asserting that there have been no war crimes committed by their forces. Constant denials of responsibility for war crimes are widely disbelieved yet disrespect for the UN and its institutions is a growing problem, as seen by the apparent impunity enjoyed by those who increasingly attack or hinder UN aid workers and humanitarian organizations. These claims of no war crimes in Syria are politically peddled despite the collection and documentation of massive crimes by highly skilled and experienced forensic and prosecutorial investigators working across Syria, perhaps more than during any armed conflict in history. They are gathering volumes of direct eyewitness, forensic, circumstantial, relevant, material and probative evidence documenting war crimes. Their findings will be submitted to an increasingly likely International Tribunal on Syria.
There is an ample and effective body of international treaty and customary humanitarian law to achieve justice for victims of war crimes in Syria. A brief summary includes the International Treaties on the Laws of War first formulated in the mid-1800s. Most, including The Hague Conventions, adopted in 1899 and in 1907, dealt mainly with the treatment of combatants, not civilians. Following World War II the UN system sponsored the 1949 Geneva Conventions and then the 1977 Protocol which for the first time articulated a general internationally agreed category of “war crimes” protecting civilians as well. The 1977 Protocols added to the body of international humanitarian law were specifically designed to erase any distinction between civilian and combatant.
In broad terms, the Geneva Conventions and Protocol form the basis of the 1998 Rome Statute, the founding treaty of the world’s only permanent court for prosecuting war crimes — the International Criminal Court (ICC). Article 8 of the Rome Statute sets out more than 50 examples of war crimes. They include, but are not limited to the willful killing, torture, taking of hostages, unlawful deportations, intentionally directing attacks against civilians not taking part in hostilities, and deliberately attacking aid and peacekeeping missions. In addition, they outlaw the use of poisonous gases; internationally-banned weapons which cause “superfluous injury or unnecessary suffering or which are “inherently indiscriminate” such as cluster bombs or incendiary weapons. International law is clear. The systematic use of indiscriminate weapons in densely populated areas is a war crime as is the use of bullets “which expand and flatten inside the human body.”
Other war crimes being widely committed in Syria include, “acts committed as part of a widespread or systematic attack directed against any civilian population.” (Rome Statute) War crimes include acts committed in detention centers: torture, murder, rape, enforced disappearance, illegal imprisonment, and persecution. Every time one of the warring parties blocks the U.N. or NGO’s or ICRC or Syrian Arab Red Crescent Society (SARCS) aid from reaching civilians under siege—as has been done routinely in Syria since early 2012, it’s a punishable war crime. These acts are equally a Crime against Humanity as they are acts of extermination, encompassing the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.
Other war crimes committed daily, indeed hourly, in Syria include the willful killing; wanton and excessive destruction of property beyond military necessity; compelling prisoners of war to fight on behalf of their captors; intentional attacks directed against civilians; intentional attacks directed against humanitarian personnel such as SARCS and the White Helmets rescue volunteers, and attacks against installations, and vehicles; bombardment of undefended towns, villages, or buildings; murdering prisoners of war; intentionally attacking markets, schools, and hospitals; mutilations; pillaging; the use of chemical weapons, including “asphyxiating gases”; and intentionally starving civilians as a method of warfare, while willfully impeding relief supplies and using civilian suffering as a weapon of war as in “surrender and you can eat again.”
I reject the arguments being heard these days that the world is not ready, legally or politically, for broader and stricter international humanitarian law accountability. On the contrary, the international judicial community has had ample experience in achieving justice for many civilian victims of war crimes by applying international humanitarian law. And over the past twenty years it has increased dramatically.
The first high-profile war crimes trials of the modern era were held in Nuremberg and Tokyo in tribunals set up by the Allies to try German and Japanese leaders. In May 1993, at the height of the Balkans wars, the United Nations established the International Criminal Tribunal for the Former Yugoslavia (ICTY) based in The Hague. Since its inception, the ICTY has indicted 161 people, of whom 83 have been sentenced, including former Bosnian Serb leader Radovan Karadzic. Following the genocide in Rwanda, the UN then set up the International Criminal Tribunal for Rwanda in 1994 in Arusha to prosecute those behind the killings of at least 800,000 people. Both courts highlighted the need for a permanent war crimes tribunal, which gave rise to the International Criminal Court.
Prosecutions at the ICC began work in The Hague in 2003; a year after its statute came into force. To date, 124 countries have signed up to the statute, including 34 from Africa — the biggest regional group — and 28 from Latin America and the Caribbean. A country that has signed up to the treaty or whose citizens have been the victims of crimes may refer cases to the ICC’s chief prosecutor, for investigation. Cases may also be referred by the United Nations Security Council or the prosecutor can initiate her own investigations with permission from the judges providing member states are involved, or a non-member state can agree to accept the court’s jurisdiction. Any group or individual can report alleged crimes, but it is up to a prosecutor to first see whether they fall under her jurisdiction. So far 23 cases have been brought before the court, and four verdicts — three guilty, one acquittal — have been issued. Preliminary inquiries or full investigations are also ongoing into situations in 19 countries or territories, with charges yet to be brought. So far 23 cases have been brought before the court, and four verdicts — three guilty, one acquittal — have been issued. Preliminary inquiries or full investigations are also ongoing into situations in 19 countries or territories, with charges yet to be brought.
With respect to Syria, none of the major players in the complex conflict — Russia, the United States, Iran and Saudi Arabia have ratified the Rome Statute so an ICC prosecutor would need a UN mandate to investigate any alleged crimes committed by the government or the rebels, including the use of chemical weapons. Earlier attempts to refer Syria to the ICC were vetoed at the UN Security Council in 2014 by Russia and China, to the dismay of human rights groups. Neither country is likely to change its stance in the short term with respect to Syria..
So will any of the alleged war crimes in Syria ever be tried in an international court with criminal jurisdiction such as the ICC?
I believe they will be. Recent rejections of international accountability by various parties should be viewed against the growing global demand for war crimes accountability in Syria and elsewhere. It is submitted that the clear trend of history is toward the expansion and application of international humanitarian law and those who seek to block it for political purposes, currently Russia and China, may subject themselves to biting international sanctions. Indeed, there is some reason to believe that even the perfidious UN Security Council “veto problem” can be resolved as part of a package of much demanded, needed and overdue UN reforms. For example, on October 4, UN rights chief Zeid Ra’ad Al Hussein urged the Security Council to introduce a limit on its five permanent members’ veto power, to prevent countries from blocking the referral of conflicts to the International Criminal Court in The Hague and to uphold International Humanitarian Law.
In summation, a Special Tribunal for Syria will have available to it ample solid international humanitarian law and solid compelling prosecutorial evidence of massive crimes committed in Syria since March 2011. In the vast majority of cases it will very likely be able to adjudicate who individually committed war crime and/or under whose command, the heinous crimes were committed.
The problem with bringing some justice to the victims of the war in Syria is not for want of applicable international humanitarian law pertaining to the nearly two dozen categories of war crimes. Nor is it an absence of evidence of who committed the crimes. A Special Tribunal for Syria will likely exhibit the judicial professionalism and competence of preceding International Tribunals including the Special Tribunal for Lebanon. That International Tribunal has been working painstakingly for years, and while some have criticized the STL, claiming it’s a political witch-hunt of some kind, the STL’s laborious work, which this observer has been studying, employs the highest international judicial standards of due process and may well be model for a future International Tribunal seeking accountability for war crimes in Syria.
What a Special Tribunal for Syria will surely face is geopolitical maneuvering on the part of some countries to avoid justice for themselves and/or selected proxies. But the Tribunal can deal with such procedural issues and will have the backing of the UN General Assembly, which more accurately that the Security Council reflects the values and aspirations of the global community.
One area in which work can begin today that will help achieve significant justice for victims of war crimes committed in Syria, would be for the UN and global community to encourage the following four concrete steps that can significantly facilitate the application of international humanitarian law before a Special Tribunal for Syria.
Firstly, each of the five permanent members of the Security Council, China, France, Russia, the UK and the United States should immediately appoint a full-time Humanitarian Envoy with the personal mandate of their head of government. The Humanitarian Envoys would work closely with the UN Humanitarian Coordinator, supporters of the belligerents and other third parties and NGO’s to gather facts and pool information from the ground about violations of UN resolutions and breeches international humanitarian law, including but not limited to those discussed above. Their full time humanitarian mandate would be the implementation of UN Resolutions and International Humanitarian Law as opposed to the political work of the Special Envoy for Syria or the UN Envoy for Syria.
Secondly, the Humanitarian Envoys of the UN Security Council’s five permanent members would be tasked with expanding access and support for cross-border transfers of relief supplies quickly and safely to civilians in rebel-held areas as demanded in various UN resolutions and the Fourth Geneva Convention and its related protocols.
The Humanitarian Envoys would have the sole authority to negotiate, mediate and arbitrate access across conflict lines during Syria’s civil war with credible interlocutors and would pressure all sides to comply with relevant UN Resolutions and provisions of International Humanitarian Law.
The five UN Humanitarian Envoys would also be mandated to work with all governments involved in the Syrian crisis who are to be held accountable for the humanitarian consequences of their funded and armed proxies on the ground.
Finally, the UN Humanitarian Envoys will work with NGOs inside opposition-held areas of Syria with respect to logistical and supply chain support, including capacity mapping of transport providers and vetted partners. All work to be designed and applied to help the civilian population of Syria and to encourage Syrian refugees forced to flee to other countries to return to their beloved Syria, our globally shared Cradle of Civilization.
People of good will cannot simply walk away from Syria when the fighting ends. Any peace agreement must include International Humanitarian Law accountability. Perhaps administered by a hybrid Special Tribunal Court based in Syria with local and international prosecutors and judges.
And what will also help guarantee much, if not perfect justice for the innocent victims of Syria’s nearly unprecedented 68 month carnage, and assure its future relevance post-Aleppo, is our mutual respect for, and the application of, the principles, standards and rules of existing International Humanitarian Law.
In the end it is up to all of us, from 197 populations whose countries have UN Membership and who share a common duty to help achieve the United Nations mandate of Articles 41 and 42 of the UN Charter which is to maintain or restore international peace and security for all of us. As well as to support the main motivation for the 1945 creation of the United Nations system which is: “To save succeeding generations from the scourge of war.”