Let’s bring this tyrant to justice
The European Union, following the US, will confirm some half-hearted sanctions this week – travel bans, money freezes and the like – on a handful of the Syrian President Bashar al-Assad‘s cronies, but not on Assad himself. This will do nothing to change his regime’s policy of murdering peaceful protesters.
The use of lethal force to disperse the demonstrations is within a government’s prerogative – thus ”Bloody Sunday”, when the British paratroopers killed 13 Irish republican demonstrators, was not an international crime. But a month of Bloody Sundays, the like of which in Syria has produced hundreds of dead so far – is a different matter. It counts as a crime against humanity, and it is now time for the Security Council to refer Assad and certain members of his family to the International Criminal Court.
The uprisings against the Syrian regime do not qualify for the humanitarian protections of the law of war: they do not yet amount to an international armed conflict (although Iran is alleged to be assisting the repression) and have not even reached the stage at which they can be legally classified as a civil war.
The regime’s actions do not attract the duty to intervene to stop genocide, as the Syrian Muslim Brotherhood has claimed, because they are directed against political dissidents, not opponents exterminated on account of their race or ethnicity.
However, a persistent brutal crackdown on a protest movement does amount to a crime against humanity, 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 seven weeks, is clear evidence of the commission of exactly such a crime.
Assad bears command responsibility for these killings and his exclusion from the sanctions is ridiculous. It is no use any more to claim him as a would-be reformer boxed in by hardliners or as ”the blind ophthalmologist” (his previous profession) carried along by events. He made the decision to stop the protests by lethal force in order to protect his family’s power and wealth from democratic challenge. His younger brother Maher commands the army’s Fourth Mechanical Division, which committed the Deraa atrocities, and is another prime perpetrator – together with relatives who run his brutal secret police (the Mukhabarat) and others from his minority Alamite sect who are part of his inner circle.
Even his wife, the fragrant Queen’s College (Harley Street) educated Asma al-Assad, deserves to be investigated as part of that circle. Ignorant journalists on women’s magazines extol her charity and compassion, but she is said to be privately supportive of her brutal husband. In international criminal law, Caesar’s wife is not above suspicion.
The rules on the use of force and firearms during civil arrest were settled by the UN in 1990. Armies and police must only resort to lethal force when ”absolutely necessary” in defence of themselves or others against the threat of death or serious injury. They have a duty to equip themselves with non-lethal incapacitating weapons such as water cannon and to use these first. They must respect and preserve human life – for example, by ensuring immediate medical treatment for the injured and by punishing any official guilty of arbitrary killing. ”Internal political instability may not be invoked to justify any departure from these basic principles,” say the UN rules.
New forms of viciousness in Syria require international condemnation: as in Bahrain, the arrest of doctors and nurses for performing their hippocratic duties to attend the injured; the tactic of leaving dead bodies in the street so their sight and stench will discourage others; and shooting or arresting civilians for taking pictures of army brutality – in the hope, no doubt, of providing evidence for an international court. Some 7000 citizens have already been arrested and placed in jails where torture is alleged to be routine.
The regime has banned all foreign media from the country – a tactic most recently deployed by the Sri Lankan government to ensure that there would be no impartial eyewitnesses to its massacre of Tamils. The Red Cross was allowed limited access, but only because of its iron-clad promise to keep all its observations secret – thus raising a serious question about its value in protecting civilians and prisoners.
In these circumstances, of an ongoing crime against humanity, the duty of the Security Council is to refer the situation in Syria to the ICC prosecutor as it did with Darfur and has recently done with Libya.
Sanctions will have little effect and the UN’s Human Rights Council (boasting such members as North Korea, Iran, Cuba and Pakistan, as well as Russia and China) has already rejected a request by the High Commissioner of Human Rights for a full-scale international investigation. Instead, it is sending a ”fact-finding” mission, because realpolitik dictates that tyranny in Syria is safer for the West than unpredictable developments which may follow its overthrow. It is unlikely that the ”fact-finders” (who will not include professional investigators or prosecutors) will find many people who dare to tell them the true facts, for fear of joining the 800 dead and 7000 already in prison. This is a weak-willed response that betrays the UN’s ”responsibility to protect” doctrine.
Nobody is suggesting ”boots on the ground” in Damascus. At this stage, a referral would mean the collection of evidence by professional investigators, whose work may well cause the ICC prosecutor to seek judicial approval for the indictment of Assad and his commanders. The very existence of an ICC inquiry would put pressure on the regime to reverse its ”shoot-to-kill” policy and if an indictment is judicially approved this would set an important precedent for the rights of peaceful protesters. Assad may not be seated in the Hague dock any time soon, but if an indictment is in the offing, he may hesitate to add to its counts. The possibility of justice is more likely to deter a bloody tyrant than a travel ban on a few of his cronies.
Geoffrey Robertson, QC, is a former UN judge and author of Crimes Against Humanity (Penguin).