Because Syria’s government had
not signed onto the Rome Statute, which renders governments and their respective
officials subject to the International Criminal Court, including its arrest
warrants and verdicts, Bashar al-Assad and his younger brother, Mahar, who were
then in absentia under Putin’s protection in Russia, were not subject to the
ICC when a Syrian court found the two brothers guilty of crimes against
humanity and war crimes on August 11, 2026. The two men could evade the death
sentences issued by their own country’s judiciary as long as they could be
protected by the Russian president in Russia. Although an Israeli court had
tried and convicted the Nazi Eichmann of crimes against humanity, so a precedent
existed for national courts adjudicating that crime, the fact that Israel had
to illegally kidnap Eichmann in Argentina and the al-Assad brothers could evade
being held accountable for their horrendous crimes in Syria suggests that the right,
proper, and effective court to hear cases on crimes against humanity, as well
as war crimes, is international, such as the ICC. That court’s weakness,
however, as in Syria, Russia, and Israel not being subject to that court’s
jurisdiction, points to a hole in jurisprudence on crimes against humanity,
assuming that the proper and necessary jurisdiction is rightly international
rather than national. With the U.S. having recently announced a full-on attack
on the ICC (and its prosecutors) at the behest of the indicted suspect Prime
Minister Netanyahu of Israel, it could be asked whether the ICC was in a
position to “fill the hole” in the jurisprudence of crimes against humanity
(and war crimes), or whether a coalition of the willing of national governments
would have to start from scratch to construct a new international criminal court
(and block diplomacy and trade with any country not willing to be bound by the
new international jurisprudence). The judicial case against the al-Assad
brothers (and their maternal cousin, who was in the courtroom and thus
could be held accountable by the national court for having led the 2011 Daraa
crackdown) demonstrates the value in shoring up international jurisprudence on
crimes against humanity (and war crimes).
The Fourth Criminal Court in
Damascus, Syria, found the country’s former dictator guilty of having ordered “the
murder of civilians including children, as well as torture and unlawful
detention.”[1]
Although the senior director of the Soufan Center said at the time of the verdict
and sentencing of death, “The ruling we saw today on the al-Assad brothers and
their cousin, Atef Najib, marks a new chapter in Syria’s post-regime
accountability landscape,” such accountability was severely limited because neither
of the brothers were in Syria, and thus could not be touched by the ruling and
sentence.[2]
In fact, the ruling on and sentencing of the two brothers even as they were in
absentia showcases the limitations of a global order in which accountability in
regard to crimes against humanity is subject to national sovereignty rather
than international jurisprudence. Caroline Rose, the director at Soufan,
admitted, “Bashar and Maher remain in Russia and likely will not be handed over
by Moscow.”[3]
It is indeed tenuous at best for accountability for the guilty of crimes against
humanity to hinge on the political discretion of Russia’s president Putin, who
was then wanted by the ICC for having abducted Ukrainian children and having
them send to Russia to indoctrinate them to be ethnic Russians rather than Ukrainians.
So even though Rose said of the Syrian court’s verdict and sentencing, “It is a decision that seeks to satisfy millions of Syrians who seek accountability and justice after war crimes committed by the regime, seeking closure,” the “result” was anything but closure.[4] This is significant because the “al-Assad regime’s documented atrocities over 14 years include the use of chemical weapons, most notably a sarin attack on the Ghouta suburb of Damascus in August 2013 that killed an estimated 1,400 people, according to US intelligence reports” and “confirmed by the Organization for the Prohibition of Chemical Weapons.”[5] Additionally, the Syrian Network for Human Rights reports that the “regime also dropped more than 80,000 barrel bombs on civilian areas,” and photographs smuggled out by a military police photographer confirm that 11,000 detainees died “from torture, starvation or execution in Syrian government facilities.”[6]
The severity of such crimes in Syria can be said to transcend national sovereignty and the related reach of national judiciaries, and thus to properly belong to international jurisprudence in line with the Nuremberg Trials wherein several Nazi officials were tried between 1945 and 1949 by an international, albeit of the Allied powers, tribunal. It was there that “crimes against humanity” was coined and first tried, and with success. In fact, that not every defendant was found guilty added to the credibility of the Trials as being something more than the vengeance of the victors on a vanquished regime. Even the Israeli trial of Eichmann turned out to be credible, as the verdict hinged on Eichmann’s violation of Himmler’s order not to march Hungarian Jews to far-away death-camps; Eichmann could not say that he was just following orders, and thus he could be found guilty of having committed a crime against humanity. Even so, both the added credibility that an international court would have had and it not having to necessarily resort in illegal abduction argue in favor of having an international rather than a national court adjudicate on crimes against humanity (and war crimes), rather than leaving these crimes only to national tribunals, especially as military technology, including on chemical weapons, has magnified the possible scale of the crimes.
As in the case of
nuclear weapons and even carbon-emissions, the weapons that technology, or
science, already made possible when the al-Assad brothers were killing and
torturing Syrian civilians for 14 years, can justify a situs for justice at the
global level—as jurisprudence in a global order, and thus not held back by
absolutist interpretations of national sovereignty which had arguably already
been antiquated when Nazi Germany enforced nationalism throughout Europe
in the mid-20th century. In other words, the limitations on the
Syrian court being the enforcer of justice against two brothers found guilty of
horrendous crimes against humanity could ween nationalists around the world from
the addiction to national sovereignty as the exclusive default for any sort of
global arrangement and international relations.
2.Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Ibid.
