Beth van Schaack’s Imagining Justice for Syria

by

| Mar 17, 2021

Justice. Damascus, Syria - Old city. 2008. Vyacheslav Argenberg

Editor’s note: The following post introduces the upcoming Articles of War Symposium on Beth Van Schaack’s book, Imagining Justice for Syria. Ten years into the conflict, this symposium provides an opportunity to assess the state of justice and accountability that Professor Van Schaack discusses in her volume. It is a platform for the contributing experts to carry the conversation forward.


 

Dr. Martin Luther King wrote, in his Letter from the Birmingham Jail, “injustice anywhere is a threat to justice everywhere.” This quote, which is frequently cited in the United States, rings just as true for the magnitude of injustices that have occurred in Syria since 2011 and the resulting threat to international peace and security that the Syrian conflict has posed.

In her book Imagining Justice for Syria, Professor Beth Van Schaack portrays the lawless brutality and unchecked transgressions of the Syrian conflict. Her critical analysis of potential avenues for accountability for perpetrators of atrocities offers guidance and hope for justice as we move forward. Professor Van Schaack started a conversation on accountability that is important to continue. This post introduces an Articles of War symposium that seeks to do just that.

As a start, I highlight some of the injustices that have taken place in Syria and emphasize the consequences of transgressions left unchecked. A lack of accountability for violations of international law will not only continue to impact all those involved in the conflict, but will also extend beyond Syria. As we look to the future, we must ensure that the egregious lack of accountability does not spread.

Injustice in Syria

The Syrian Government’s violent and unlawful response to anti-regime protests—namely the arrest and torture of 15 teenage boys—triggered the civil war.

The brutal war has featured a montage of atrocities. Included among these, as Professor Van Schaack details in her book, are the use of barrel bombs, chemical weapons, slavery, and rape as a means of warfare. The instability also led to the rise of the Islamic State of Iraq and the Levant (ISIL), a lawless armed group that committed some of the worst of the atrocities. It was, and remains, impossible to deny the occurrence of many of these atrocities as the global community has been able to observe the horrific events real-time. Local civilians leveraged their portable digital devices to show videos of the damage caused by the barrel bombs and the suffering related to the sarin gas attack in 2013. Throughout the conflict there have been many unanswered calls for accountability and justice. Yet, the mechanisms for holding the perpetrators of these atrocities accountable have been woefully inadequate, and justice remains, for the most part, elusive.

Consequences of Unchecked Transgressions

The armed conflict in Syria demonstrates the consequence of not having effective legal forums to hold State and non-State actors accountable for the commission of human rights violations, war crimes, and crimes against humanity. The absence of such forums led to an overall erosion of the rule of law in many instances. This conflict has shown that left unchecked, crimes can spill over into neighboring countries like Iraq where, for example, over 6,000 Yazidis were enslaved by ISIL.

Further, these unchecked crimes have led to an overall disregard of international law. The Assad Regime’s use of chemical weapons not long after it acceded to the Chemical Weapons Convention in 2013 is but one example. According to a 2019 report by the Global Public Policy Institute, nearly 90 percent of the confirmed chemical attacks occurred after Syria’s accession to the Chemical Weapons Convention. Persistent violators of international law can become emboldened by the lack of accountability, which reinforces the need to examine what went wrong in Syria.

Given the magnitude of this failure, two questions arise: (1) Why did international mechanisms for justice fail? (2) How can the international community hold perpetrators accountable going forward?

Starting the Conversation

Professor Van Schaack tackles these very difficult and complex questions. She uses her wealth of knowledge and experience to describe the atrocities that occurred in the Syrian Conflict. As she states, “[v]irtually every international crime that forms part of the international penal code … has been committed in and around Syria.”[1] Professor Van Schaack explains the issues related to accountability through multiple lenses. Her book does this by identifying the magnitude of the atrocities that occurred, explaining the viability of various legal avenues for accountability—both national and international—and highlighting some of the technological tools that have been used to document crimes on the battlefield. Overall, there is not a timelier resource to start the conversation on accountability and the Syrian conflict than Professor Van Schaack’s book.

This conversation must extend beyond the well-worn criticisms of the U.N. Security Council and the International Criminal Court. While these institutions failed to take effective action on the clear and egregious violations of international law that occurred in Syria, Professor Van Schaack identifies other innovative options for ensuring accountability, including ad hoc tribunals, regional tribunals, and domestic tribunals.

Informed by overwhelming video and other digital evidence available from the Syrian Conflict, as Professor Van Schaack points out, these tribunals may be able to hold some of the perpetrators of the worst crimes accountable. In fact, this past February, Germany tried and convicted one former Assad Regime member for being an accomplice to crimes against humanity and has another trial scheduled for later in the year. Still, key leaders in the Syrian government will likely avoid prosecution because Syria is not a member of the International Criminal Court and prosecution would require a U.N. Security Council referral, which is unlikely given Russia’s support for the regime. Nevertheless, the dialogue on accountability should continue otherwise injustice will continue to undermine the legitimacy of international law and its ability to regulate armed conflict.

There has been much discussion about the future of warfare. This discussion cannot overlook the lingering impact of the Syrian conflict on compliance with the law of armed conflict and accountability. For example, the use of chemical weapons in modern armed conflict was unthinkable prior to Assad’s use, yet his unlawful use of these weapons and the inadequacy of the system of accountability may fail to deter similar acts in future conflicts. Further, extremist non-State actors, like ISIL, will likely continue to exploit the instability caused by armed conflict to engage in war crimes and crimes against humanity. It will be difficult for States to look past the egregious violations of international law that are likely to occur in future conflicts. In other words, the lingering impacts of the injustices in the Syrian conflict are unconstrained by geographic borders and legal regimes making it a true threat to compliance with international human rights law and the law of armed conflict.

Thus, the discussion on accountability should include a broad audience to confront this difficult issue. Beth Van Schaack’s book, Imaging Justice for Syria, is the perfect start point for this dialogue.

The symposium is intended continue the conversation that Profess Van Schaack so eloquently and comprehensively began. The experts contributing to the symposium bring unique and diverse perspectives to the conversation.

Upcoming Posts:

Battlefield Detention, Counterterrorism, and Future Conflicts by Dan Stigall

Strengthening Atrocity Cases with Digital Open Source Investigations by Alexa Koenig & Lindsay Freeman

Humanitarian Notification Systems and Intentional Attacks Against Hospitals by Bailey R. Ulbricht & Allen S. Weiner

The Security Council Veto in Syria: Imagining a Way Out of Deadlock by Philippa Webb

Universal Jurisdiction Investigations and Prosecutions: Syria by Alexandra Lily Kather

See also Beth Van Schaack’s book, Imagining Justice for Syria and her earlier Articles of War post with the same title.

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Colonel Winston Williams is Deputy Head of the Department of Law at the United States Military Academy and is an Associate Professor there. He also serves as the Managing Editor for Lieber Studies Series and writes on law of armed conflict issues.

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Footnotes

[1] Beth Van Schaack, Imagining Justice for Syria 1 (2020).