Like a handful of other states in the Middle East, Syria has experienced significant domestic political turmoil in recent months, with a sizable and seemingly increasing percentage of its population openly protesting against the autocratic government of Bashar al-Assad. The Syrian government has responded with a crackdown comprised of some of the most violent and repressive tactics seen anywhere since the start of the Arab Spring several months ago. In a report issued yesterday, the High Commissioner for Human Rights at the United Nations described this crackdown as a systematic campaign of murder, torture, deprivation of liberty, and persecution that spans from March to July 2011. The report, which is based on a series of field investigations conducted by the Office of the High Commissioner, concludes that the Syrian government’s conduct “may amount to crimes against humanity” under Article 7 of the Rome Statute of the International Criminal Court.
The report seems to raise three questions for most readers: First, what is a “crime against humanity”? Second, how might the Syrian government have engaged in such conduct? And third, what consequences, if any, follow from culpability?
The Rome Statute of the International Criminal Court (“ICC”) answers the first question. Article 7 of the Statute provides that a “crime against humanity” occurs when (1) a government makes an attack against a civilian population; (2) the attack is widespread or systematic; (3) the government makes the attack knowingly; and (4) the attack includes any of the following: murder, extermination, enslavement, deportation, severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, persecution, enforced disappearance of persons, apartheid, or “other inhumane acts of a similar character.”
The High Commissioner’s report shows that the Syrian government has likely engaged in conduct proscribed by Article 7. The report recounts violent attacks on hundreds and possibly thousands of civilian protestors by the government’s military forces. It recounts evidence of these attacks in locations such as Damascus, Dara’a, Homs, Hama, Idlib, and several other localities, and thereby suggests that the attacks are widespread and systematic. It suggests by the pervasiveness of the attacks, the level of their coordination, and their repetition over the course of several months that the government has knowingly carried them out as a national policy aimed at suppressing dissent and affirming the rule of President Assad. And it recounts a substantial body of direct evidence of murder; torture; persecution on religious, ethnic, and political grounds; and enforced disappearance of persons. Among other acts, the report describes hundreds of summary executions; disproportionate and indiscriminate use of military force against unarmed civilians; mass graves; and official torture by means of electric shocks, beatings, and psychological abuse.
Assuming the accuracy of the report, the argument that Syria has violated its international legal obligations seems persuasive, for two reasons: First, it is widely accepted that customary international law prohibits states from committing crimes against humanity. Second, there is an established principle that signatories of a treaty must refrain from acts that defeat the treaty’s “object or purpose.” Syria has not ratified the Rome Statute, and therefore has no treaty obligations to violate. It has, however, been a signatory to the Rome Statute since November 2000, and thus might be vulnerable under Article 7 on the view that the crackdown defeats the Statute’s purpose of deterring and holding governments accountable for crimes against humanity.
Perhaps the most intriguing question, however, is not whether the Syrian government has engaged in crimes against humanity, or whether the government has violated its international legal obligations in doing so, but instead whether there is anything the international community can do to hold the government accountable. It seems unlikely that the ICC will be able to exercise jurisdiction over culpable members of the Syrian government. Typically, jurisdiction exists under the Rome Statute where an accused is a national of a state party, an alleged crime occurs within a state party’s territory, or the United Nations Security Council refers the matter to the Court. Because Syria has not ratified, it is not a state party over which the Court can exercise jurisdiction in the absence of a referral from the Security Council, and there is no sign that the Security Council will make a referral anytime soon. Absent ICC jurisdiction, unilateral or coordinated state action seems to be the primary option for meaningful penalties. And it looks like national governments are already beginning to utilize this option: President Obama issued an executive order yesterday that freezes certain Syrian government assets and prohibits Americans from transacting business with the government. Several European countries are anticipated to follow suit.