The horror of Syria’s war is in the millions of pictures that are too gruesome to circulate—charred limbs stacked outside hospital wards, bloated bodies rotting in sniper alleys, a toddler plucked from the rubble without a head. It is in a group of relatives trying to carry the sixty-pound corpse of a man who died of hunger—the boiled grass he’d been living on could no longer sustain him—but struggling under his weight, because they, too, are starving to death. It is in a generation of orphans, of children who never learned to read but can tell you the difference between the sounds of shelling and those of air strikes. It is in the intentional bombing of hospitals and clinics, the targeted assassinations of medical workers, the forced displacements, the chemical-weapons attacks. It is in a death toll so high, and so impossible to verify, that the UN stopped counting two years ago.
Following the horrors of the First World War, a British lawyer named Hugh Bellot spent years beseeching the League of Nations to establish an international criminal court at The Hague, to prosecute war crimes and “all offenses committed contrary to the laws of humanity.” For Bellot, allowing the “outrages” committed during the war—which included the widespread use of chemical weapons—to go unaddressed was as “dangerous to humanity and civilization” as the atrocities themselves had been. Bellot’s efforts fell short; it took the Holocaust for the international community to set up the world’s first international war-crimes tribunal, and another half century of atrocities in South America, Asia, Africa, and Eastern Europe for his vision to be fully realized. In 1998, after the widespread killings in Rwanda and Bosnia, the United Nations convened a five-week assembly in Rome, to draft a treaty that would establish an international criminal court that could prosecute war crimes, genocide, and crimes against humanity. In theory, the UN believed, the very existence of such a court would give pause to dictators and warlords prone to brutality; perpetrators living anywhere in the world could be hunted until their dying breaths.
Nowhere has the supposed deterrent of eventual justice proved so visibly ineffective as in Syria. Like most countries, Syria signed the Rome Statute, which, according to UN rules, means that it is bound by the “obligation not to defeat the object and purpose of the treaty.” But, because Syria never actually ratified the document, the International Criminal Court has no independent authority to investigate or prosecute crimes that take place within Syrian territory. The UN Security Council does have the power to refer jurisdiction to the court, but international criminal justice is a relatively new and fragile endeavor, and, to a disturbing extent, its application is contingent on geopolitics. In 2014, when a measure to give the I.C.C. jurisdiction in Syria came before the council, Russia and China blocked it. Meanwhile, since 2011, not a minute has passed in which the Syrian government has not been committing multiple, simultaneous, widespread war crimes and crimes against humanity. The body of court-ready evidence against top officials within the Syrian government is more complete and damning than any that has ever previously been collected during an active conflict. And yet there is no clear path for prosecuting the highest-level offenders.
The most incriminating evidence was produced by the regime’s own immense bureaucracy. Military police officers have systematically processed and photographed the emaciated corpses of thousands of detainees who were tortured to death by security and intelligence agents; more than fifty thousand of these images are currently in the possession of international lawyers and forensic investigators. And, as I have previously written for this magazine, independent war-crimes investigators working for the Commission for International Justice and Accountability have smuggled out of Syria more than six hundred thousand government files, allowing them to trace the systematic torture and murder of tens of thousands of suspected members of the opposition to orders emanating from President Bashar al-Assad’s highest-level security committee, and approved by Assad himself. The C.I.J.A. is also investigating isis for the Yazidi genocide. But, whatever the perpetrators’ affiliations, the only war criminals who are likely to face imminent prosecution for their roles in the Syrian conflict are low- and mid-level operatives who have been identified in European jurisdictions, after entering the continent hidden in the refugee flow.
The Rome Statute defines “crimes against humanity” as a set of acts “committed as part of a widespread or systematic attack directed against any civilian population.” The various applicable crimes that have been (and continue to be) committed in Syrian government detention centers include torture, murder, rape, enforced disappearance, illegal imprisonment, persecution, and other inhumane acts. Each time the Syrian government blocks U.N. aid from reaching areas under siege—as it has done routinely in the past four years—it may be perpetrating the act of “extermination,” a crime against humanity that includes the “deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.”
The Rome Statute also affords the International Criminal Court jurisdiction over war crimes that are committed “as part of a plan or policy,” or on a large scale. If the court were permitted to investigate war crimes in Syria, it would be unsurprising to see future prosecutions of top officials—including Assad—for an array of crimes prohibited by the Geneva Conventions, including willful killing; wanton and excessive destruction of property beyond military necessity; compelling prisoners of war to fight on behalf of their captors; intentional attacks directed against civilians; intentional attacks directed against humanitarian personnel, installations, and vehicles; bombardment of undefended towns, villages, or buildings; murdering prisoners of war; intentionally attacking markets, schools, and hospitals; mutilation; pillaging; the use of chemical weapons, including “asphyxiating gases”; and intentionally starving civilians as a method of warfare, while willfully impeding relief supplies.
With Russia now actively participating in Assad’s air campaign—using banned incendiary munitions and frequently bombing hospitals and markets in rebel-held territory on his behalf—the likelihood that the UN Security Council might eventually refer jurisdiction to the International Criminal Court has dropped to approximately zero per cent. (It would be astonishing for Russia to vote in favor of a measure that could result in the prosecution of its own military commanders.) The Syrian war has become a conflict in which war crimes carry no consequences—present or, seemingly, future—and in which their perpetration has been normalized as a part of military strategy, rather than being seen as an aberration. The prevailing climate of impunity has emboldened other governments to carry out atrocities in the pursuit of their objectives. In Yemen, Saudi jets seem to have adopted Assad’s policy of blowing up hospitals.
Western countries and the United Nations have spent the past five and a half years condemning atrocity after atrocity in Syria, to no avail. With justice so limited by geopolitics, who in Syria is afraid of international law?