Application of International Law for Post-Conflict Transitional Justice in Syria

Nicholas Ognibene, Associate Editor, Michigan Journal of International Law

The meteoric rise of Islamic State (IS) in Syria and Iraq has brought Syria’s civil war to the forefront of media attention worldwide. Now in its fourth year, the Syrian Civil War has involved numerous actors and widespread human rights abuses perpetrated by multiple sides. Beginning in March 2011 as a series of protests against the corruption and human rights abuses of the regime of Bashar al-Assad, aggressive use of force by the government attempting to quell the unrest led to an escalation of protests and violence. By 2012 fighting had spread across the country, with a mix of secular, moderate opposition forces, Islamist jihadists, and Kurdish militias fighting the Assad regime and each other. Current estimates of the death toll exceed 140,000 and millions have fled Syria or been internally displaced.[i] Throughout the conflict, multiple factions have perpetrated numerous human rights abuses.  At least 27 intentional mass killings have occurred, several instances of chemical weapon use have been reported,[ii] and on an almost continuous basis, the government has indiscriminately shelled residential areas in an effort to suppress opposition.[iii]  In the face of such widespread violations of human rights, the potential significance of post-conflict transitional justice is substantial.  Although a post-conflict tribunal for Syria does not appear to be imminent, it is nevertheless important to consider the application of international criminal law to such a scenario, to reinforce the importance of adherence to international humanitarian standards and to assert the promise of accountability for perpetrators. In the context of post-conflict transitional justice, the application of both domestic and international law must be considered. The importance of the application of domestic law cannot be overstated. The use of domestic criminal provisions may reinforce local ownership of the process and defuse criticism stemming from the application of foreign concepts of justice on a country. However, Syrian domestic law is not sufficient on its own. The Syrian Penal Code lacks substantial case-based interpretation of its statutes in some areas, and in any case was not conceived with an eye towards managing post-conflict justice in the aftermath of a devastating civil conflict. The application of international conventions is necessary to serve critical purposes, and nowhere is this truer than in the context of Syria. Furthermore, the repeated use of international law in post-conflict scenarios worldwide reinforces the concept of universally applicable standards of justice. As greater the specter of international criminal law in the management of post-conflict justice, the stronger the universal sense of applicability of these standards and thus the less viability there is for states or other actors to refuse to conform.  This may ultimately even apply to circumstances in which the state in question is not a signatory to a particular convention, via the development of customary international law. In the context of the Syrian Civil War, two bodies of international law are of particular utility. The Rome Statute of the International Criminal Court established the International Criminal Court (ICC), and granted it jurisdiction over major international crimes (specifically genocide, crimes against humanity, war crimes, and crimes of aggression).[iv] Although jurisdiction of the ICC is limited to ratified states and Syria has not ratified the treaty, it is conceivable that in a post-conflict scenario a transitional government could ratify the treaty, which it contains a number of key provisions, including but not limited to a lack of a statute of limitations (potentially key with respect to Syrian insofar as any future tribunal could be convened well after the occurrence of an offense).[v] The Geneva Conventions broadly concern the treatment of non-combatants in the context of a conflict. Common Article III applies to conflicts that are entirely domestic in nature,[vi] and as such is applicable to the Syrian Civil War. It requires “humane treatment” of all non-combatants, including former participants who have been removed from fighting. As Syria is a party to all four Geneva Conventions, violations committed in the context of the conflict are applicable. The potential utility of the international conventions discussed above may be particularly useful with respect to several types of incidents that have seen repeated occurrences in Syria. Most prominent of these may be random and indiscriminate shelling and bombing of residential areas, which has been perpetrated by regime forces (and also various opposition groups to a lesser degree) continually throughout the conflict. These acts clearly violate several provisions of Article 8(2) of the Rome Statute (such as the proscriptions of “wilful killing” in Article 8(2)(a)(i),[vii] “extensive destruction and appropriation of property not justified by military necessity” in Article 8(2)(a)(iv),[viii] and intentional attacking of civilians in Article 8(2)(b)[ix]) as well as Common Article III(1)(a) of the Geneva Convention (proscribing “violence to life and person” on the basis that all noncombatants shall be treated humanely).[x] International conventions may also be particularly useful in areas where Syrian domestic law is lacking. One such area is the intentional destruction of foodstuffs.  Regime forces have frequently bombed bakeries and other food distribution facilities in an attempt to starve out rebel areas.[xi] Syrian law does not contain any provisions specifically outlawing this practice, but such provisions may be found in Article 8(2)(b)(xxv) (intentionally using starvation of civilians as a method of warfare)[xii] and Article 7(2)(b) (proscribing deprivation of food) of the Rome Statute[xiii] as well as AP II Article 14 of the Geneva Convention (prohibiting attacking or destroying “objects indispensable to the survival of the civilian population”).[xiv] Another area in which Syrian law is comparatively weak is torture; more comprehensive prohibitions on this (and thus accountability for violations thereof) may be found in Article 7(1)(f)/(k) (proscribing “torture”[xv] and “other inhumane acts…causing great suffering”,[xvi] respectively) and Article 8(2)(a)(ii) (proscribing “torture or inhuman treatment”[xvii]) of the Rome Statute as well as Common Article 3(1)(a) of the Geneva Conventions (proscribing torture).[xviii] Provisions such as these are directly applicable to the repeatedly documented widespread instances of torture perpetrated by the Assad regime.[xix] Finally, the Rome Statute in particular carries a range of specific prohibitions on the use of weapons calculated to cause unnecessary suffering. These include, notably, chemical weapons, the ban on which Syria is now a party to,[xx] and also prohibitions on weapons that generally cause “great suffering”.[xxi] This language is particularly key with respect to the regime’s habitual use of “barrel bombs” (essentially oil drums filled with explosives and shrapnel and dropped by plane or helicopter) in a highly indiscriminatory fashion.[xxii] Broadly accepted and implemented standards of international law should play an essential role in post-conflict transitional justice in Syria. Yet this is not to say that the Syrian Penal Code does not have a critical role to play in any post-conflict transitional justice scenario. Yet the Rome Statute and the Geneva Conventions contain provisions that allow for a greater, more comprehensive guarantee of accountability for the atrocities committed in the Syrian Civil War, and their use further reinforces the importance of universally accepted international standards of justice. As such, they should be indispensable in any post-conflict tribunal for Syria.