Skip to main content

Why the ICC must probe Syria’s war

Despite jurisdictional limitations, it is important to start compiling evidence and articulating charges

Since 1945, following the Nuremberg and Tokyo trials, the international community has built up a web of treaties and conventions aimed at prosecuting major international crimes such as genocide, crimes against humanity and war crimes. 

The 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1949 Geneva Conventions and the establishment of international criminal tribunals for Yugoslavia, Rwanda and Sierra Leone are milestones of humanity in its aspiration to reduce the consequences of warfare. 

Today, however, these mechanisms seem incapable of achieving their original goals and taking legal action against those responsible for the worst atrocities.

A sense of failure

Amid the raging chaos of Syria’s war, where the death toll has reportedly exceeded half a million people, the sense of failure is absolute. This comes with a backlash against the legitimacy of the global judicial institutions designed to oversee criminal liability. 

In light of this, the International Criminal Court’s chief prosecutor, Fatou Bensouda, should initiate a probe into the Syrian war and accordingly charge those liable for war crimes and crimes against humanity.

Documenting the atrocities - from torture and sexual violence, to enforced disappearances, to the use of chemical weapons and air strikes against civilians - will never be easier than it is now

There is more than a reasonable basis to proceed with an investigation, with disturbing reports from the ground streaming in every day. The fact that Syria is not within the jurisdiction of the ICC - having not ratified its foundational Rome Statute - is no excuse, nor is the failure of the United Nations Security Council to refer the case to the court. 

Even if the case would not take hold for jurisdictional reasons, it would still be a worthwhile exercise to compile the evidence, attest to the reality of the crimes and their perpetrators, and articulate the charges.   

The possibility of a peace treaty

Some have criticised the notion of prosecution, arguing that it may hamper the possibility of brokering a peace agreement in Syria. They claim it would be difficult to justify compromises with actors charged with war crimes or crimes against humanity. Additionally, those indicted may be reluctant to negotiate. 

However, it is becoming clearer by the day that the Syrian war may not end with a peace treaty among the belligerents. The uncontested victory of President Bashar al-Assad seems closer than ever. The war could end with the complete annihilation, or forced exile, of all opposition forces, making any treaty unnecessary. 

A Syrian government tank rolls through a former rebel-held district in Aleppo after the city was recaptured in December 2016 (AFP)
Consequently, any potential drawback from initiating charges seems moot at this stage - and an investigation would be an important step for victims and their families. Documenting the Syrian people’s suffering, even if the end result is not an incriminating verdict, is a way to recognise their victimhood and a necessary first step in healing their wounds. 

Such a move could also restore part of the lost credibility of the ICC, which has been accused of bias for mostly targeting African men. Beefing up the ICC’s moral stature is crucial for its prospects of survival over time.  

The danger of inaction

Moreover, potential regime change in Syria could pave the way for future prosecutions. Documenting the atrocities - from torture and sexual violence, to enforced disappearances, to the use of chemical weapons and air strikes against civilians - will never be easier than it is now.

Syria's war is far from over
Christopher Phillips
Read More »

Failing to see beyond the formal limitations of the court forces it to remain silent. Inaction could be a serious blow to the court’s foundational values and any of its future actions, underscoring the sense of pointlessness surrounding the contemporary international criminal justice system. 

Had the Nuremberg court made similar arguments, Nazi criminals might never have been charged.

- Jordi Quero is a researcher at the Barcelona Centre for International Affairs and a lecturer at the Department of International Law at University Pompeu Fabra (Spain). 

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.

Photo: Syrian government soldiers walk down a street in the town of al-Mohammadiyeh, east of the capital Damascus, on 7 March 2018 (AFP)