People gather at a mass burial for the victims purportedly killed during an artillery barrage from Syrian forces in Houla in this handout image provided by Shaam News Network, May 26, 2012.
Is Syria’s Bashar al-Assad Guilty of War Crimes?
The images from Houla in Syria had a sickening familiarity: bodies wrapped in white shrouds, lined up in a large pit in the center of town while grieving relatives cried and wailed. In all, a reported 108 people, all victims of last week’s Houla massacre, were being buried, 49 of them children.
The United Nations Commissioner for Human Rights’ representative has said only about 20 of the victims were killed by artillery or mortar fire. The rest had been shot in what appear to have been summary executions. Syria has denied its forces had anything to do with the massacre and says the killings were the work of “terrorists.”
The ditch reminded the world of others it has seen - in Nazi Germany, in the former Yugoslavia, in Cambodia, in Vietnam, in Libya and Iraq. In many cases, the atrocities committed there were ruled war crimes. But is what happened in Houla a war crime? If it is, how can Syrian president Bashar al-Assad and others be held accountable?
War crime?
War by its very nature involves the violent taking of life. But there are rules established in what are called the laws of armed conflict. Some of the rules were codified in the Geneva Conventions of 1949 and the Hague Conventions of 1899 and 1907. The Conventions are considered to be part of international law and are applicable to all armed conflicts worldwide.
Cherif Bassiouni is the Emeritus Distinguished Research Professor of Law at DePaul University in Chicago. He has also served on five U.N. Commissions that investigated war crimes and was the Chairman of the Drafting Committee for the U.N.’s Diplomatic Conference on the Establishment of the International Criminal Court.
“Basically, the Geneva Conventions and the customary laws of armed conflict are very simple,” he said. “You cannot use force against non-combatants; you cannot kill or attack civilian populations; you cannot attack Red Cross, hospital, or religious establishments; you cannot torture POWs,” said Bassiouni.
“In this case, quite obviously, when the Bashar al-Assad forces bombarded civilian places, this is considered excessive use of force and, as such, if civilians are killed it is considered a war crime,” he added.
“It absolutely does constitute a war crime,” she said. “Summary executions, executions of detainees, executions period - unprovoked executions, targeted attacks on civilians are indeed war crimes,” Whitson said.
Libyan parallel?
When Moammar Gadhafi’s forces nearly encircled Benghazi and threatened to annihilate civilians, NATO responded with airstrikes. But there has been no such response in Syria despite a death toll of between 10,000 and 14,000, according to various estimates. The primary difference? In Libya, the U.N. Security Council authorized the use of force.
That is not the case in Syria. Russia and China have twice vetoed U.N. sanctions against the Assad regime. Russia has its only naval base on the Mediterranean at the Syrian port of Tartus. Russia is also Damascus’s major arms supplier. China has economic and military ties with Iran, which supports Assad’s Alawite government.
Deaths Across Syria
Sarah Leah Whitson of Human Rights Watch says as long as Russia and China stand in the way, the killing will continue in Syria.
“First and foremost, I hold Russia responsible for the failure of international action,” she said. “It is, I think, very important and appropriate that Europe and the U.S. have imposed sanctions on Syria. But unless they are global sanctions, unless Russia and China are participants in that, it’s very hard for it to have the full effect that it should have,” said Whitson.
Cherif Bassiouni says that unlike in Libya, Russia and China might be waiting to see if their commercial and military interests would be protected if Assad were overthrown.
“What happened is that all of the oil concession and business matters in rebuilding Libya are going to be given to the Western powers and not to Russia and China. And so they felt probably left out of it and they are holding on to their position with respect to Syria - which is untenable and it’s certainly a violation of every principle of humanitarian law,” said Bassiouni.
“But they are holding off for probably some political and economic benefits, and this is one of the regrettable aspects of politics interfering in the pursuit of justice,” Bassiouni added.
What next?
U.S. Secretary of State Hillary Clinton has said that lack of U.N. intervention pushes Syria closer to the brink of civil war. Several Western nations have expelled Syrian diplomats. U.S. Ambassador to the U.N. Susan Rice has said military action against Syria is not out of the question, even without Security Council approval.
But what can be done? Can charges be brought against those responsible?
Sarah Leah Whitson of Human Rights watch says there is only one person to blame.
“The Commander in Chief in Syria is in fact President Bashar al-Assad, and he is responsible not only for direct orders that he gives to regular forces as well as irregular forces such as the shabiha (government-paid plain-clothed gunmen) but also for what he has allowed to happen, and his negligence in failing to protect Syrian civilians,” she said.
“It’s not necessary to show that he gave the direct order if he did nothing when he knew that the troops under his command were committing horrible abuses,” she added.
Cherif Bassiouni of DePaul University Law School says there is no time to waste.
“In this case there is no doubt that there should be a commission established by the United Nations to go and investigate and to compile a record of the criminal responsibility of Bashar al-Assad, and his brother Maher…along with the chief of staff of the army, and the head of military intelligence. They are responsible for war crimes and crimes against humanity,” he said.
And even though President Assad seems content to wait out the international community and to continue his policies against dissent, Bassiouni says he believes justice will be done.
“They [Syrian leaders] should know that even though Russia and China are protecting them tomorrow, that if there is a commission that investigates what they are doing, and has the evidence, they will not always be immune from prosecution in the future," said Bassiouni.
“And this has to be done now while the evidence is fresh,” he added.
Slow wheels
Former Liberian leader Charles Taylor was convicted and sentenced to 50 years in prison for aiding and abetting atrocities in the Sierra Leone civil war. So far, he is the only former head of state to be convicted of war crimes and crimes against humanity by an international or hybrid international-national tribunal.
Former Yugoslav leader Slobodan Milosevic was tried by an international tribunal, but died before judgment was rendered in his case. Former Ivory Coast president Laurent Gbagbo’s trial on charges of crimes against humanity is scheduled to start June 18.
