Posted on 07 February 2013
With evidence of crimes against humanity in Syria mounting, legal scholars at the EUI discussed how international law can be applied to the conflict.
“When does humanitarian law begin to apply in that conflict? At which point in time did the violence escalate to such a point where one would say that we are going from a peace-time regime to a war-time regime?” asked Payam Akhavan, a professor at McGill University and Fernand Braudel Fellow, during a seminar about crimes against humanity and genocide on 31 January.
The conflict in Syria - which the UN states has left over 60,000 dead and more than 600,000 registered as refugees – last month led 57 states to call on the UN Security Council to refer the situation to the International Criminal Court (ICC). The request was rejected by Russia, a permanent member of the Security Council, yet calls into question the role of international law in a conflict which has lasted nearly two years.
Even if increased pressure leads the ICC to take on the case in the future, Akhavan said there is no legal rule to determine precisely at which point a series of civilian protests tips over into full-scale war or when individual crimes became crimes against humanity.
“The defining feature of a crime against humanity is whatever characterises an elusive factor of scale or gravity. If you de-link crimes against humanity from armed conflict, then what you have are simple ordinary crimes such as rape and murder which are only crimes against humanity by virtue of the context in which they are committed. So one begins to see how significant that context requirement is, not just as a matter of criminal liability, but because we’re not just holding someone responsible for an ordinary crime but a crime against humanity; there’s an added element of moral opprobrium,” he said.
The international community has to tread carefully to ensure it is not dealing with ordinary crimes and therefore encroaching on the domestic jurisdiction of states, Akhavan said. He added however that the death toll and scale of destruction in Syria has reached the threshold for crimes against humanity.
“Scaling gravity becomes crucial, but as we know there is no neat mathematical formula for deciding what constitutes widespread or systematic…In some respects one could argue that it requires an arbitrary decision that this is now of a scale of gravity that justifies the label of ‘crimes against humanity’.”
Defining a crime
In addition to the numbers of people affected, the tactics employed in Syria also affect whether acts can be classed as international crimes: “If you are lawfully targeting military objectives, even if the bombardment terrifies civilians, makes them flee and some are victims of incidental deaths; that would probably not qualify as a constituent act of crimes against humanity. But where you have indiscriminate, disproportionate attacks then the case can be made that this is part of a widespread or systematic attack.”
Akhavan turned to Aleppo, the northern Syrian city which has become a focal point of the civil war, to determine how crimes against humanity could be defined. “If one looks at the targeting of civilians that are waiting for food, the use of inherently indiscriminate weapons such as scud missiles, the tonnage of artillery fire in relation to the military objectives that exist, one could plausibly argue that this is evidence of an intention to target the civilian population on a widespread or systematic scale,” he said.
In August 2012 Amnesty International said a “horrific level of violence” was being endured by civilians in Aleppo, while last month the bodies of approximately 65 men were found in the city that had reportedly been summarily executed.
Asking who is accountable
With no-one claiming responsibility for the latter incident, it is not currently possible to attribute criminal responsibility. But Akhavan said that as ‘superior orders’ is not a defence under international law, each combatant could be held accountable for their own actions.
The professor however remained unsure of how far down the chain of command a prosecutor would likely go: “In the context of a large-scale siege of Aleppo, does the criminal responsibility attach to President Assad, because he is the commander-in-chief? Does it devolve on his generals that are devising the strategy?”
A further complicating factor arises with the involvement of pro-government militia, who have been accused of carrying out attacks on the civilian population in Syria. For Akhavan, the state’s acquiescence must be part of criminal proceedings: “It’s not necessary that Assad picks up the phone and says, ‘Go and exterminate these people’. They do it, because they are criminal and the state lets them do it.”
While the UN Security Council is yet to push for criminal proceedings at the ICC, Akhavan’s analysis establishes that a case for crimes against humanity exists in the Syrian civil war. The scale and gravity of attacks on civilians, in Aleppo and elsewhere, suggests that the acts of both pro- and anti-government forces are subject to international criminal law.
(Text by Rosie Scammell, images by Rami Alhames)