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Md. Siam Shafi Legal Research Intern at Sattar & Co. LL.B. Graduate, BRAC University Apprentice Lawyer, District and Sessions Judge Court, Dhaka, Bangladesh. |
“No government in the world kills
its people, unless it's led by a crazy person” — Bashar al-Assad.[1] The
former regime in Syria has been characterised by decades of oppressive rule,
crimes against humanity, and a devastating armed conflict between various state
and non-state actors, causing immense sufferings and displacement of Syrians. A
Series of armed conflicts between the Assad government and some rebel groups
brought the fifty-year authoritarian regime to an end. An armed coalition,
supported by both state and non-state parties, was involved.[2] The
former President of Syria is accused of perpetrating crimes against humanity
against civilians. Moreover, ICC possesses the jurisdiction to prosecute
individuals solely for the gravest offences, that also encompasses crimes
against humanity.[3]
OHCHR’s fact finding mission discovered a pattern of both systematic and
widespread human rights abuses by Syrian security and military forces that
includes torture, enforced disappearance, persecution, murder, and deprivation
of liberty.[4] In
particular, the individual criminal responsibility of Bashar lies within the crimes
committed by his subordinates following his direct and indirect supervision.
Syrian security and military
officials brazenly perpetrated crimes against humanity under both direct and
indirect supervision of Bashar that violated countless international norms and
treaties. Indeed, the attacks were both widespread and systematic. The term
“crimes against humanity” encompasses various gravest offences purposefully
committed against any civilian population either in a systematic or widespread
attack.[5] Those
gravest offences includes extermination, deportation, murder, enslavement,
persecution on the basis of the ground of racial, national, political, ethnic,
religious, cultural, or gender; rape; torture; arbitary imprisonment; enforced
disappearance; apartheid; sexual slavery; forced pregnancy; forced
sterilization; forced prostitution; or any other methods of sexual violence; or
any other cruel acts.[6]
Syrian Network for Human Rights (SNHR) highlighted 14 years of human rights
violations during Bashar’s regime, documenting, the killings of 202,000
civilians, 96,321 cases of enforced disappearance, 15,102 deaths during
torture, use of destructive weapons, and mass displacement.[7] According to the UN, around
300,00 people have lost their lives since the Assad government deployed forces
against the pro-democracy movement.[8]
Since Syria’s 2011 Arab Spring, the Assad regime is responsible for systematic
and widespread torture against civilians. Both IHL[9] and IHRL[10] prohibit torture and it is
regared as one of the most heinous and horrific abuses of human.[11] In
addition, International treaties and customary international law ensures the
right not to be subject to torture as an absolute and non-derogable,
classifying it as a jus cogens norm.[12]
Numerous reports suggests that the Assad regime employed horrific methods of
systematic torture, including both physical and psychological, against
civilians. Furthermore, survivors of the torture desbribed that they were
subjected to extreme physical abuse which includes regular beatings with sticks
and batons, whippings, electric shocks, and sexual assault, brutal genital
mutilation, and many more.[13]
Also, the Assad government forcefully disappeared over 96,000 civilians which
suggests that the regime has long employed enforced disappearance and arbitrary
detention as forms of repression against its opponents.[14] Enforced disappearance is
prohibited under both IHL[15] and
IHRL.[16]
Additionally, it also received a jus
cogens status that resulted in obligation erga omnes.[17]
The jurisdiction of ICC only lies to
prosecute cases involving crimes of aggression, genocide, and crimes against
humanity,[18]
while it has the jurisdiction to prosecute only individuals.[19]
However, the Rome Statute has not yet been ratified by Syria.[20]
According to the nature of this statute, the ICC has jurisdiction to prosecute
people who are citizens of a country that is not a party to the Statute. For
example, ICC issued two arrest warrents against a former Sudanese military
official and politician, named Omar Hassan Ahmad Al Bashir, who was accused of
genocide, war crimes, and crimes against humanity.[21] The most significant
attribution of this case is that Sudan has not yet been ratified by the Rome
Statute. In such a scenario, ICC can try its cases provided the issue has been
reported by the UNSC[22] or
by the non-state party itself.[23]
Additionally, the ICC prosecutor has the authority to initiate a proprio motu investigation.[24]
After analyzing ICC’s jurisdictional framework, it can exercise its
jurisdiction to prosecute Bashar in one of the three ways.
Rome Statute and several case
precedent defines superior/command responsibility. It suggests that superiors
or commanders bear accountability for internationally recognized crimes
perpetrated by his subordinates.[25]
Under this doctrine, Bashar bears the responsibility for the acts of his
subordinates i.e., Syrian security and military forces. In particular, three
essential element must be present to establish superior/command responsibility
as established by ICTY in Čelebići Case
that includes: a) there must exist a superior-subordinate relationship; b) the
superior must have known or had reasonable suspicion that his subordinates would
or had already committed a crime; c) the superior must have avoided to take
proper and necessary action to prevent the crime from being committed and
punish the offenders.[26]
Firstly, a superior-subordinate relationship had existed between Bashar and Syria’s
security and military forces. Bashar had served as both the President and the
commander in chief of Syria’s security and military forces.[27] It clearly suggests that he
has legal authority or control over his subordinates. Further, all powers in
case of decision-making related to military and security were in the hands of
Bashar and he formally controlled the chain and flow of command of the Syrian
security and military forces.[28]
Secondly, it is evident from numerous reports that Bashar was aware of the numerous
allegations regarding crimes against humanity that have been rigorously
committed by his subordinates. Thirdly, Bashar avoided implementing necessary
measures to prevent the grave offences from being committed by his
subordinates. As per a report published in 2022 by the U.S. Department of
State, the Assad government did not investigate, identify, penalize, or
prosecute officials who were involved in committing human rights violations,
particularly crimes against humanity. Despite the fact that the crimes had been
committed since 2011, Bashar’s avoidance in prosecuting offenders clearly
suggests his consent over those crimes. An increasing amount of evidence
collected by UN investigators reveals the direct involvement of Bashar along
with some senior military and security officials in crimes against humanity and
war crimes.[29]
To conclude, Bashar perprested
crimes against humanity with the help of his security and military forces that
were both systematic as well as widespread. Bashar bears the responsibility for
the acts of his subordinates. The Syrian current government should bring this
issue to the ICC with immediate effect. Given the substantial evidence of
crimes against humanity, ICC has necessary justifications to exercise its
jurisdiction in order to prosecute Bashar al-Assad along with his subordinates
who are accused of committing crimes against humanity. Ultimately, the pursuit
of justice for the Syrians should not remain at the forefront of our collective
consciousness.
[1] Bente
Scheller, The Wisdom of Syria's Waiting
Game: Syrian Foreign Policy Under the Assads (1st edn, Hurst & Company
Publisher 2013) 1
[2] Md.
Siam Shafi, ‘Understanding the Syrian Armed Conflict’ The Daily Star (Dhaka, 20 December 2024) <https://www.thedailystar.net/law-our-rights/news/understanding-the-syrian-armed-conflict-3780591> accessed 27 December 2024
[3] Rome Statute of the International Criminal
Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (Rome
Statute), art. 5(b)
[4] OHCHR, ‘Statement by Ms. Navi Pillay, UN High Commissioner
for Human Rights to the Human Rights Council 17th Special Session on
"Situation of human rights in the Syrian Arab Republic" in Geneva’ (Reliefweb, 22 August 2011) <https://www.ohchr.org/en/press-releases/2011/08/human-rights-council-debates-situation-human-rights-syrian-arab-republic> accessed 28 December 2024
[5] ibid. (n.3), art. 5; The
Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago
Josipovic, Dragan Papic and Vladimir Santic (ICTY Trial Chamber Judgement)
IT 95-16 (14 January 2000) 567-636
[6] ibid. (n.3), art. 5; The
Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago
Josipovic, Dragan Papic and Vladimir Santic (ICTY Trial Chamber Judgement)
IT 95-16 (14 January 2000) 567-636
[7] Statements by SNHR, ‘Summary of the Assad Regime’s Crimes
Against the Syrian People Over the Last 14 Years’ (SNHR, 20 December 2024) <https://snhr.org/blog/2024/12/20/summary-of-the-assad-regimes-crimes-against-the-syrian-people-over-the-last-14-years/> accessed 6 January 2024
[8] Heather
Chen, Sahar Akbarzai and Aliza Khalidi, ‘More than 300,000 killed in decade of
Syrian conflict, UN says’ CNN
(Atlanta, 1 July 2022) <https://edition.cnn.com/2022/07/01/world/syria-war-united-nations-report-intl-hnk/index.html> accessed 28
December 2024
[9] GC-I, art. 12;
GC-II, art. 12; GC-III, arts. 17, 87, 89; GC-IV, art. 32; Customary International Humanitarian
Law, rule. 90
[10] International Covenant on Civil and Political Rights
(adopted 16 December 1966, entered into force 23 March 1976 ) 999 UNTS 171
(ICCPR), art. 7; Universal Declaration of Human Rights (adopted 10 December
1948) (UDHR), art. 5; Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (adopted and enterned into force (adopted 10
December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT)
[11] Emiliano J. Buis and Morten Bergsmo (eds), Philosophical Foundations of International
Criminal Law: Foundational Concepts (Torkel Opsahl Academic EPublisher,
2019) 135
[12] Manfred Nowak, ‘Obligations of the States to Prevent and
Prohibit Torture in an Extraterritorial Perspective’ in Mark Gibney and Sigrun
Skogly (eds), Universal Human Rights and Extraterritorial Obligations (University
of Pennsylvania Press 2010) 11
[13] Niveen Rizkalla, Oussama Bakr, Sarah Alsamman, Salaam
Sbini, Hana Masud and Steven P. Segal, ‘The Syrian regime’s apparatus for
systemic torture: A qualitative narrative study of testimonies from survivors’
[2022] 22(1) BMC Psychiatry 1, 19
[14] Matthew Miller, ‘Announcement of Steps to Impose Visa
Restrictions on Additional Individuals Involved in the Repression of Syrians’ (U.S. Department of State, 30 August
2024) <https://www.state.gov/announcement-of-steps-to-impose-visa-restrictions-on-additional-individuals-involved-in-the-repression-of-syrians/> accessed 28 December 2024
[15] Customary International Humanitarian Law, rule. 90
[16] UN Declaration on the Protection of all Persons from
Enforced Disappearance (adopted 18 December 1992) (UNDPED), art. 12;
International Convention for the Protection of All Persons from Enforced
Disappearance (adopted 20 December 2006, entered into force on 23 December
2010) 2716 UNTS 3 (ICED)
[17] Stuart Casey-Maslen and Christof Heyns, The Right to Life Under International Law:
An Interpretative Manual (1st edn, Cambridge University Press 2021) 361
[18] ibid. (n.3), art. 5
[19] ibid. (n.3), art. 25(1)
[20] Dr. Mutaz M. Qafisheh, ‘OPINION - How can the Assad regime
be prosecuted by the ICC?’ Anadolu Agency
(Ankara, 19 December 2024) <https://www.aa.com.tr/en/opinion/opinion-how-can-the-assad-regime-be-prosecuted-by-the-icc/3429203> accessed 6 Januray 2024
[21] The Prosecutor v.
Omar Hassan Ahmad Al Bashir (ICC Trial Chamber Judgement) ICC-02/05-01/09
(11 December 2011)
[22] ibid. (n.3), art. 13(b)
[23] ibid. (n.3), art. 12(3)
[24] ibid. (n.3), art. 15
[25] ibid. (n.3), art. 28; Robert Cryer, Darryl Robinson and
Sergey Vasiliev, ‘An Introduction to International Criminal Law and Procedure’
(4th edn, CUP 2019) 368; Prosecutor v.
Stanislav Galic (ICTY Trial Chamber Judgement) IT-98-29-T (5 December 2003)
173-177
[26] The Prosecutor v. Zdravko Mucić, Hazim Delic, Esad Landzo and Zejnil
Delalić (ICTY Trial Chamber Judgement)
IT-96-21-T (16 November 1998) 346
[27] David L. Phillips, An Uncertain Ally: Turkey Under
Erdogan's Dictatorship (1st edn, Taylor & Francis 2017) 190
[28] Muhsen AL Mustafa, ‘The Chain of Command in the Syrian Military:
Formal and Informal Tracks’ (Omran Center
for strategic studies, 19 August 2021) <https://de.cdn-website.com/9c201758bf4c45f8a6ca531af1ab7b03/files/uploaded/The_Chain_of_Command_in_the_Syrian_Military.pdf> accessed 6 January 2021
[29] Associated Press, ‘U.N.: Mounting evidence of Assad war
crimes’ CBS NEWS (New York, 2
December 2013) <https://www.cbsnews.com/news/un-mounting-evidence-of-assad-war-crimes/> accessed 29 December 2024