JURIST Guest Columnist Morse Tan of Northern Illinois College of Law argues that the atrocities in Syria present a complex problem in international law that must be navigated so the people of the embattled nation may be protected …

Over 100,000 people have lost their lives in atrocities committed during the ongoing Syrian civil war. Over 40 percent of the population find themselves displaced. The Syrian government has repeatedly been implicated for war crimes, and has been a frequent subject of UN warnings, condemnations and resolutions. On January 17, government opposition forces had their turn to be warned by UN High Commissioner for Human Rights, Navi Pillay. The warning comes after the latest example of unfettered violence and disregard for international law during this conflict&#8212committed by opposition forces in the Yarmouk Palestinian refugee camp outside Damascus.

Particularly, Pillay indicates that humanitarian aid attempts by the UN have been violently blocked, leading to starvation of innocent civilians. Opposition violations may constitute war crimes, the High Commissioner warned, and perpetrators must be held accountable. From obstruction of vital aid, attacking relief workers and ultimately the starvation of innocent civilians, the opposition forces have violated international law and arguably committed war crimes. Humanitarian efforts to deliver vital supplies, such as food, must not be obstructed, and no harm should be directed at those who bravely provide aid, lest the perpetrators transgress international law.

Violent and successful efforts to deprive innocent civilians life-saving and sustaining supplies has become starvation as a method of warfare, also prohibited by international law. In the context of war, widespread death by starvation has amounted to mass execution of innocent civilians, and arguably, war crimes committed by perpetrators. The warning comes as the approximately 18,000 remaining in the camp are unable to leave and access to food and medicine has been blocked. As recently as December 2012, the population in Yarmouk numbered 160,000 prior to a mass displacement.

Rampant violations of international law on the part of the Syrian government and opposition forces have been widely reported and condemned repeatedly by the UN and the international community. Even if a mere fraction of violations reported by reliable sources prove approximately accurate, both the government and the opposition are guilty of committing war crimes. Syrian government forces, in official and unofficial capacities, and opposition forces, in their multiple factions, have extrajudicially executed over 100,000 people.

High Commissioner Pillay calls for full accountability for all parties violating international law. The reasonable call for accountability and an end to violence illustrates complex challenges in theory and practice under international law. The Syrian Civil War presents a myriad of theoretical paths, many with practical dead ends. UN resolutions, imposition of sanctions, and nongovernment organization (NGO) condemnations may serve to dissuade further violations. International law provisions under the Rome Statute create the authority to prosecute perpetrators of war crimes. The Responsibility to Protect (R2P) adopted by the UN provides guidance on the role of the international community where the government has clearly failed to protect its people. The atrocities of the Syrian crisis constitute a human rights crisis warranting modern day international humanitarian intervention to protect the civilian victims trapped in the middle of two enemies unwilling to distinguish them from combatants.

UN action has included resolutions and condemnations of the above acts as each came to light. Arguably, most have been ignored thus far. Economic sanctions imposed by various countries and rebukes from NGOs have not dissuaded the parties from violence, even amongst and within the rebel coalition. The September 2013 UN Resolution 2118 [PDF] marks a positive step toward potential progress. United Nations Secretary-General Ban Ki-moon affirmed the resolution as “the first hopeful news on Syria in a long time,” but said, even amidst this important initial action, that “we must never forget that the catalogue of horrors in Syria continues with bombs and tanks, grenades and guns.” He continued to state that the plan to eliminate Syria’s chemical weapons is “not a license to kill with conventional weapons”. The resolution passed with votes from both China and Russia, focusing on destruction of chemical weapons in Syria. It marks movement in a positive direction, as the Syrian military used chemical agents to perpetrate an August 2013 massacre, which killed an estimated 1,500 people. The mass execution of innocent children, among the victims, provoked outrage around the world. This news stunned some people previously unaware of the humanitarian crisis in Syria.

Government and opposition forces ignored previous resolutions and condemnations, as the focus shifted to impose chemical weapons destruction on the Syrian government. The rebel coalition has reportedly attacked the Christian minority more than the government forces. However, the resolution cannot legally reach the opposition coalition, as they do not constitute a valid entity to which international law applies—unless they become the next government of Syria.

The International Criminal Court (ICC), created by the Rome Statute, presents another possible tool of accountability to prosecute perpetrators of war crimes. However, since Syria has not ratified the Rome Statute, prosecution by the ICC must come through a referral by the UN Security Council. An affirmative Security Council vote for referral remains unlikely since Russia and China hold veto power. While the ICC primarily provides an ex post measure, with no immediate assurance of safeguarding civilians targeted by violence, it may aid the peace negotiations or serve to deter further crimes against humanity, even if prosecution before the ICC becomes simply a plausible possibility in the minds of the perpetrators.

The current situation in Syria remains dire, and the measures mentioned above have failed to provide adequate ex ante means to stop the war crimes, calling for possible action under the doctrine of Responsibility to Protect (R2P). R2P stems from the 2005 UN World Summit and includes core guidelines or the, “Three Pillars,” for the international community regarding intervention on humanitarian grounds. Pillar One: the state holds a primary responsibility to protect its population against war crimes; Pillar Two: the international community assists with the responsibility, including through capacity building; Pillar Three: where the state fails to protect, the international community must collectively undertake additional measures. R2P constitutes a modern variation on the doctrine of international humanitarian intervention to protect civilian victims.

The ongoing atrocities in Syria illustrate an utter failure of the government to protect its population, which crumbles Pillar One. Those who have survived the atrocities have largely fallen victims of displacement, illness, or starvation. Over 100,000, reportedly a conservative and non-current figure, have not survived. A perpetrator of war crimes on its own people, the Syrian government not only intentionally has failed to protect, it has affirmatively harmed. New evidence illustrates the horrific extent of a particular program of systemic torture, starvation and execution.

While the Syrian government holds the primary responsibility to protect its people from ongoing war crimes and crimes against humanity, the international community holds a concomitant responsibility to assist the State, as outlined in Pillar Two. The international community has repeatedly acted with diplomatic, humanitarian, and peaceful efforts to assist the Syrian government in protecting its people—at great risk and to the point of exhaustion. Aid workers as well as civilians find themselves subjected to the deadly crossfire of their own government as well as to the opposition forces. The international community has made some laudable efforts, but has not succeeded in stopping the massive bloodshed still transpiring.

When a State has failed to protect its population, and countless international efforts to assist do not provide a sufficient remedy, the international community is prepared to “take collective action, in a timely and decisive manner” in accordance with Chapter VII of the UN Charter. Pillar Three remains the giant pillar standing in the international room. What does further action entail and how must it be considered and then implemented? Does the international community have the backbone to protect&#151with the potential economic and casualty costs? An ounce of ex ante prevention can provide more benefit than a pound of ex post cure.

Just as the international community would have to address the meaning in practice, the current Geneva Conference on Syria provides a possibility of a diplomatic resolution. If the Syrian and main opposition delegations can agree on any measures to end the war, one hurdle has been cleared. Whether they adhere to any agreement remains a major question. One way or another, the Syrian people must be protected: for many of them, it is literally a matter of life or death.

Morse Tan is an Associate Professor of Law at Northern Illinois College of Law. Prior to joining the faculty there, he served as a Visiting Scholar and Senior Research Fellow at the University of Texas School of Law. Professor Tan worked with the American Medical Association’s Institute of Ethics, as a certified mediator and for clients such as the UN Development Programme as well as the American Association of Neurological Surgeons. Professor Tan was aided in writing this article by Sarah Walsh, his Research Assistant.

Suggested Citation: Morse Tan, Syrian Executions May Amount to War Crimes, JURIST – Forum, Feb. 1, 2014, http://jurist.org/forum/2014/02/morse-tan-syria-executions.php