The obliteration of a desperately needed aid convoy carrying food to 78,000 starving people in Aleppo underlined a terrible truth when it comes to international law: that the conflict in Syria is one in which war crimes carry absolutely no consequences.
The International Criminal Court (ICC) was set up in 2002 with the laudable aim of ending impunity for war criminals, but over the past five years – while more than 400,000 people have died and Syria has been eviscerated – the court has watched silently from the sidelines.
This is not because it is unwilling to get involved but because – and perhaps as an international institution it should be more honest about this – it is hamstrung by the political framework within which it operates, structurally unable to intervene.
Within hours of the attack, in which the local head of the Syrian Arab Red Crescent was one of more than 20 civilians killed, both the United Nations and NGOs such as Amnesty International were describing what happened as a war crime.
‘Callous attack’
The UN’s emergency relief co-ordinator, Stephen O’Brien, set the tone when he warned: “Let me be absolutely clear: if this callous attack is found to be a deliberate targeting of humanitarian workers, it would amount to a war crime.”
Without mentioning the ICC, Amnesty’s response was even more withering, focusing on the total lack of accountability on all sides – and, by implication, the lack of any institution capable of holding them accountable.
The attack, it said, illustrated “how civilians in Syria are paying with their lives for five years of total impunity for systematic war crimes and crimes against humanity.
“Until the international community shows that it is serious about bringing perpetrators to justice, these appalling crimes will continue on a daily basis.”
There was no sign of such seriousness, of course, just pro forma mutual recriminations.
Destroyed
A White House spokesman claimed the convoy was destroyed by two Russian-made SU-24 jets flown by Russian or Syrian pilots. Russia maintained the cause was “fire on the ground”, also claiming later that an unmanned US Predator drone had been in the vicinity.
The reality, however, is that the Americans, the Russians, the Syrians, and probably several of the militant groups controlling access to the area, were all aware of the location of the convoy, its route and destination. Given that knowledge, this was, most likely, a war crime.
O’Brien is correct. In terms of international law, the issue is whether or not the convoy was deliberately targeted – and if everyone knew where it was, then the attack, almost by definition, must have been deliberate.
Article 8 of the Rome Statute which set up the ICC is the pertinent legislation. It includes in its definition of war crimes “intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission . . . ”
However, to understand why it’s highly unlikely that the court will ever act on this black-and-white atrocity, it’s necessary to delve deeper.
Syria signed the Rome Statute on November 29, 2000, but – like Russia – never followed up by ratifying it, which means the ICC has no independent authority to investigate or prosecute crimes committed inside its borders.
So unless the government of Bashar al-Assad ratifies the treaty or accepts the jurisdiction of the court through a declaration – which it’s unlikely to do given that it would probably be first to be indicted – the ICC is effectively locked out.
Rome Statute
There is one other possibility: that the UN Security Council could refer the Syrian conflict to the court in The Hague, immediately giving it retrospective jurisdiction stretching back to the day the Rome Statute came into effect, on July 1st, 2002. However, that won’t happen either.
That’s because – as on the last attempt, May 22nd, 2014 – the referral would be vetoed by two of the five permanent council members: Russia and China.
By Russia because it might open itself to prosecution and because it regards Syria as its sphere of influence, and by China because its foreign policy abhors “meddling” in matters that don’t concern it, largely for fear of reciprocation.
It was frustration over the obscenity of such endless deadlock that led the American, British and French ambassadors to walk out of an emergency session of the Security Council last Sunday as their Syrian counterpart began to justify his regime’s actions.
After the last attempt to refer the war was vetoed in 2014, the international justice director of Human Rights Watch, Richard Dicker, observed: “Moscow and Beijing can veto a resolution but they can’t suppress the desire for justice of the Syrian people . . . ”
The pity of it is that, faced with such unspeakable horrors, all that was left to the Syrian people following their appeal to the security council was that unrequited “desire for justice” – and that now, two years on, not a thing has changed.
