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Assad's overlooked international crimes

- November 6, 2013

[Note from Erica Chenoweth: This is a guest post from Eamon Aloyo, a Research Associate at the One Earth Future Foundation.]

Bashar al-Assad’s refusal to enact democratic reforms and his aggression against Syrians who oppose his autocratic rule have resulted in the death of 115,000 people. Of those, likely more than 40,000 are innocent civilians. Assad has committed war crimes and crimes against humanity. In addition to bombing, shelling, shooting and gassing Syrians, Assad is likely additionally guilty of committing crimes against humanity via sieges and systematically blocking lifesaving aid to innocent civilians. Some rebels have likely committed similar harms. I argue in my (presently ungated) article in the current issue of Global Constitutionalism that we legally can and morally should consider such wrongs crimes against humanity, and prosecute those who commit such crimes.
Consider the evidence. On Sunday, a New York Times reporter wrote that “The government is using siege and starvation as a tactic of war in many areas, according to numerous aid workers and residents.” A journalist at Time wrote that Assad has “turned to . . . blockade-induced starvation.” A Washington Post journalist reported that sieges have resulted in some people being “slowly starved.” Some hungry civilians cannot flee the areas where supplies are scarce “because their way is blocked by snipers and checkpoints.” Kenneth Roth of Human Rights Watch wrote that “The Syrian government has been loath to permit such cross-border humanitarian aid because that would undermine its efforts to make life miserable in rebel-held areas.” According to John Kerry, Assad “has systematically blocked food shipments to strategically located districts, leading to a rising toll of death and misery” and denied “medical assistance, food supplies, and other humanitarian aid to huge portions of the population.” Preventing individuals from bringing goods to certain areas have secondary effects such as the outbreak of polio.
These blockades harm large numbers of people. The New York Times editorial team wrote that “some five million are virtual refugees in their own country — trapped in neighborhoods isolated by military blockades . . . desperately short of food and medicine.” Sixteen aid organizations, including the IRC, Save the Children, and World Vision have released a joint statement reporting that “Millions of Syrian civilians live under siege-like conditions, trapped in pockets without access to food, water, medical care and protection from violence. Half of those affected are children.” According to a reporter from the New York Times, “experts warn that if the crisis continues into the winter, deaths from hunger and illness could begin to dwarf deaths from violence.”
These policies may not attract as much attention as Assad’s violent wrongs, but international actors should take them seriously because they are violations of widely accepted moral and legal prohibitions. In my article, I argue that these types of harms can be as wrong as violent harms because they can be as severe and affect as many as people, and they can constitute international crimes according to the Rome Statute of the International Criminal Court (ICC). Consider first the violations of moral prohibitions. Killing someone by starving them to death is just as, if not more, harmful than the quick death of being killed by a bomb. Furthermore, both methods of killing violate the important human rights of innocents.
Now consider briefly why such blockades likely constitute a crime against humanity. In order to be convicted by the ICC, someone must be responsible for committing both a chapeau element and an underlying act of one of the core crimes in the Rome Statute. The chapeau element of crime against humanity reads as follows: “any of the following [underlying] acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” One underlying act according to Article 7.1.k is “Other inhumane acts of a similar character [to the other underlying acts enumerated in article 7] intentionally causing great suffering, or serious injury to body or to mental or physical health.” Furthermore, someone must be individually criminal responsible. This condition can be met if one “Orders, solicits or induces the commission of such a crime,” according to Article 25.3.c.
Assad’s sieges very likely meet all of these conditions. He is very likely intentionally and knowingly ordering siege policies that foreseeably and avoidably cause civilians widespread or systematic severe harms that are of similar gravity (namely, death, or severe physical and mental harms) to other underlying acts in Article 7. Although it would be up to the ICC’s prosecutorial team to prove that Assad has committed such harms, and that these harms qualify as a crime against humanity, it is plausible that his siege policies would meet the criteria for a crime against humanity.
The practical impediments to prosecuting Assad for such crimes against humanity are similar to those for prosecuting him for violent international crimes. Syria is not a member of the ICC. In order to prosecute him at the ICC, therefore, the U.N. Security Council would have to refer him to the ICC or he would have to commit a core crime on the territory of a member state, such as Jordan. Neither is likely.
Despite prosecution of Assad at the ICC being unlikely, there are two reasons why identifying Assad as committing these wrongs is important. First, identifying these acts as crimes would send a message to other would-be international criminals that such acts could land you behind bars in The Hague. It might have some deterrent effect, including on some Syrian rebels. One way to further incentivize rebels to permit unfettered access would be to make aid to rebels conditional on it. Second, acknowledging that these acts are likely international crimes could increase the pressure on those who could provide aid to both increase the aid and become more creative in how the aid can be delivered. If airlifting supplies to desperate civilians can avoid an international crime, and not just help people, the international community may feel a greater responsibility to do so. NGOs could use this argument to increase pressure on international donors. Recognizing Assad’s (and some rebels’) international crimes via sieges for what they are and working hard to mitigate them is one way the international community can contribute to its responsibility to protect innocents from mass atrocities.