After 16 months of carnage in Syria, enough evidence and reports of systematic brutality and crimes against humanity exist to send the case to the International Criminal Court at The Hague, according to diplomats. The reports, including names of Syrian officials and details on massacres, amount to a mass tipping point, they say, and allow a “referral” by the UN Security Council to the ICC that would result in indictments.
This week, France’s top human rights diplomat told the Monitor there is “definitely” enough evidence of Syrian war crimes and torture to refer the case: “The raw material is there,” says Ambassador François Zimeray.
President Hollande and US Secretary of State Hillary Clinton insist the prosecution of war crimes is not a matter of if, but when. Last week, as host of a Paris summit of Friends of the Syrian People, French president François Hollande made it his first order of business to pledge “no impunity for crimes” by Syrian leaders. The US State Department has collected war crimes evidence since spring 2011.
Mr. Zimeray described Syria as an “endless Guernica” after visiting its border this year, and told the Monitor that after four years and 97 trips to world trouble spots, he had never encountered “such cruelty, cruelty inside of violence … that is manifest in the criminal attitude of [Assad’s] regime.”
Yet, even as various tribunals at The Hague this week marked progress – the first verdict coming from the ICC in the Lubanga child soldiers trial, and the first witness testimony in the trial of Bosnian Serb Gen. Ratko Mladic – the wheels of justice on Syria are tangled in conflicting interests by emerging world power blocs.
“Russia and China are the hurdles, definitely,” says Reed Brody of Human Rights Watch, which this month published a report describing an “archipelago” of some 27 torture centers around Syria, including locations and the names of at least half of the commanding officers in charge of them.
While a war crimes investigation might not have an immediate impact on the conflict, the fact that enough evidence exists amid ongoing atrocities is a point diplomats feel can play a role in the court of world opinion, if not in Moscow or Beijing.
The concept of international justice in ad hoc tribunals on Rwanda and the former Yugoslavia, and now embodied in the ICC, has been criticized as weak, sometimes counterproductive, and slow. ICC indictments have tended to center on African warlords, giving it a “North-South” bias. The US, Israel, India, and many Arab nations are not signatories.
The UN has in the past referred Libya’s Muammar Qaddafi and Sudan’s President Omar al-Bashir to the ICC. But Syria has now come to represent a case of Russia’s Vladimir Putin playing cards in a larger game. A Security Council referral is likely to occur only as part of satisfying broader goals that Mr. Putin has in mind, analysts say.
“What makes Syria a hinge-moment is that Russia and China are proving that they have no strategic interest in transitions beyond dictatorship,” wrote Michael Ignatieff in a New York Review of Books blog yesterday. “Both Russia and China see Syria not through the prism of international peace and security or human rights, but through the logic of their own despotism. For Putin, Syria is Chechnya; for China it is Tibet.”
The Yugoslav tribunal was set up during the conflict in 1993, partly, critics said at the time, in order to assuage the conscience of world leaders that something was being done in the midst of Serb aggression. Like Syria, the Balkans conflict was seen as a symbolic moment of clashing forces and values after the cold war.
But the UN agreement took place at a time of Soviet transition, a time that Mr. Putin has said is a humiliation he will not repeat in tending to Russian interests.
Defectors could provide key information
The Syrian story continues to evolve as the Syrian ambassador to Iraq, Nawas Fares, has defected, days after another important defector, Gen. Manaf Tlass, formerly a member of the Assad family circle. Both men are seen as potential gold mines of inside information for a war crimes investigation.
French Syrian experts like Fabrice Balanche say that Mr. Fares is a more significant transitional player than Mr. Tlass, since he has a political base in the east of Syria, was a top official there during the rule of Hafez al-Assad, Bashir Assad’s father, and has respect as ambassador to Iraq, a key state in the region.
"The resignation of the Syrian ambassador in Iraq is very important, far more than the defection of Tlass,” says Mr. Balanche, of the University of Lyon. “This ambassador is a Sunni who comes from the region of Al Bukamal, in the Eastern part of Syria … and is part of an important tribe straddling Syria and Iraq. He could play a role in the political transition.”
Moreover, if the ICC is seen as weak and ineffectual, the blame for this is not to be thrown on the court, says Mark Ellis, director of the International Bar Association in London. The ICC, like the UN that established it, is merely an extension of the political will and sensibility of the world powers that make it up.
“The ICC doesn’t have an army or police force. It can only act with the support of the international community,” Mr. Ellis argues. “So when we hear a focus on the perceived weakness of the court, this is not the ICC’s fault. The Security Council gives the ICC its jurisdiction.”
“We are preparing for a [Syria] trial that will happen,” says Zimeray. “This is not a belief, it's a conviction, and what I heard at the Friends of Syria meeting in Paris convinced me the international community is dedicated to punish the perpetrators. This is an improvement, and would not have been the case 20 years before."
In the wake of the Lubanga verdict, the French newspaper of record, Le Monde, argued enthusiastically in a front page editorial that the ICC has begun to show results 10 years into its development, and, despite being alternately “too timid or too aggressive,” has become “an essential instrument” in world affairs.