This week the Syrian regime has come under increased pressure. This is nothing new, but what is different is the angle of attack, as a report on the ‘Credibility of Evidence Certain Evidence With Regard to the Torture and Execution of Persons Incarcerated by the Current Syrian Regime’ speaks more to the treatment of prisoners than the more widely covered civil war, which we are in general more familiar with.
The indictment would thus be war crimes, and the three lawyers that compiled the reports were the senior lawyers on the ICTY and Sierra Leone. The lawyers obtained their evidence by interviewing a senior defector codenamed ‘Caesar’, who detailed the egregious treatment of prisoners, which included maiming, removing of eyes and worse. To quote De Silva, the former Chief Prosecutor of the special court for Sierra Leone, “This is a smoking gun of a kind we didn’t have before. It makes a very strong case indeed”.
Let’s assume Assad is guilty of this. There are two main problems with the report. The first is it is incomplete-it focuses on Assad as an individual and his regime, but does nothing to address the other groups involved in the conflict. For instance, it is likely that al-Nusra, an extremist group in the region, are responsible for similar atrocities. Part of the problem with the emphasis on individualism in international law is that groups like al-Nusra are much more difficult to prosecute. In other words, the media or al-Nusra itself would have to work harder to elevate an individual a level that they could be held responsible and prosecuted.
The second problem is that Syria is not a part of the ICC or the Rome Statute, and thus would require referral by the UNSC. With the already given reluctance from Russia and China on such matters, it seems unlikely that this matter would proceed further than it already is. Ultimately this is the main problem the ICC faces: even when faced with, what the three lawyers believe to be conclusive evidence, it is unable to function. What such reports can do, however, is put further pressure on the Assad regime by means of increased exposure to its crimes. In this, we see that the ICC’s ability to generate political pressure does not just come from the trials it has, but the process by which such trials are called. In other words, if the ICC did not exist, and the mechanisms to bring such crimes to the court via such reports did not exist, there would be no need to generate them, and thus this avenue of pressure would be lost.