The Washington Post,October 10, 2016 - by Josh Rogin
There seems to be no way for the international community to stop the ongoing war crimes being committed by the Syrian regime and its Russian allies, especially in Aleppo. But by brazenly flouting international law, leaders and rank-and-file officials in both countries are opening themselves up to future justice in multiple ways.
Secretary of State John F. Kerry issued a surprising call Friday for investigations into the atrocities. “Russia and the regime owe the world more than an explanation about why they keephitting hospitals, medical facilities, children, women,” Kerry said. “These are acts that beg for an appropriate investigation of war crimes.”
There is clear and abundant evidence the Assad regime and the Russian government are committing crimes that include, but are not limited to, deliberate attacks on civilians, collective punishment, starvation as a tool of war, torture, murder, inhumane treatment of prisoners and the use of chemical weapons on the battlefield.
Nevertheless, no near-term accountability seems likely. Last month, U.N. Secretary General Ban Ki-moon called on the U.N. Security Council to refer the situation in Syria to the International Criminal Court, a step dozens of countries have endorsed. But Russia would surely veto such a move and, since neither Syria nor Russia has ratified the ICC’s founding Rome Statute, the court’s power is limited without Security Council action.
The U.N. Commission of Inquiry on Syria fecklessly refuses to assign blame for atrocities — such as, for example, when a U.N. aid convoy was attacked last month, which the United States attributed to Russia and which was yet another violation of international humanitarian law. Congress has a sanctions bill that would punish the Syrian government, Russia and Iran for war crimes and crimes against humanity, but the White House opposes that legislation.
Justice for the innocent victims in Syria will likely take years, if not decades, to be realized. But there is both precedent and a legal path forward for such prosecutions.
Russian soldiers bear criminal responsibility not only for participating in the war crimes but also for aiding and abetting the Syrian regime, said Cherif Bassiouni, who led the U.N. investigations into crimes in Yugoslavia, Bahrain and Libya and helped create the ICC. And, he said, due to what’s known in international law as the doctrine of command responsibility, senior Russian military and political figures could also be prosecuted for the actions of their subordinates. “The criminal responsibility applies to all of those in the chain of command who know of the commission of these crimes, all the way up to Putin,” said Bassiouni. “The law is not only applicable to he who gives an order, but he who knows it’s a war crime and does nothing to stop it.”
Under the Geneva Conventions, any state can assert what’s known as universal jurisdiction and bring prosecutions against Syrian and Russia leaders for war crimes.
“Every country if it wanted to could assert its jurisdiction if it could grab the person,” said Bassiouni. “Every Russian officer involved should know they are exposed to it.”
Another avenue for war-crimes prosecutions is for cases to be brought in third countries whose citizens have been victims of the Syrian and Russian atrocities, said Stephen Rapp, who until recently was the State Department’s ambassador at large for war-crimes issues.
“There are people you could prosecute for these crimes based on the citizenship of these victims,” he said. “Let’s build cases in every country whose citizens were killed in those convoys.”
Private citizens can bring civil cases against foreign leaders in the U.S. federal court system using the Alien Tort Claims Act, an 18th-century statute that has been employed since 1980, including by Holocaust survivors and victims of genocide in South Sudan, to confront human rights violations committed abroad.
When the Syrian civil war ends, if a new government comes to power, that government could also initiate its own justice and accountability process, seek arrest and prosecution of perpetrators on all sides, and even grant the ICC permission to play a role, said Rapp.
Last month, when Attorney General Loretta E. Lynch spoke at a ceremony marking the 70th anniversary of the Nuremberg Trials, she said, “they made clear that war crimes and crimes against humanity are not beyond the reach of justice; rather, they are crimes that each of us has a responsibility to address.”
There is no statute of limitations on war crimes and crimes against humanity. The Syrian civil war is eventually bound to reach a settlement one way or another. Those who negotiate that settlement should not negotiate away the rights of the victims. Vladimir Putin and Bashar alAssad must be held to account.
Josh Rogin is a columnist for the Global Opinions section of The Washington Post