Abdulhay Sayed is an independent Syrian lawyer, and has been a lecturer in law in the Damascus Faculty of Law from 2005 to 2011.
For Syrians, who are caught between totalitarian arrogance and human folly, the debate in the Security Council on 22 May 2014, over the French-sponsored Chapter VII draft resolution to refer the situation of Syria to the International Criminal Court (ICC), was marked by a tragicomic mix of global point scoring and political impotence. The defeat of the resolution is a major disappointment to Syrians. By refusing to address impunity for crimes against humanity in Syria irrespective of perpetrators’ political affiliations, the Security Council has failed to uphold the basic principles for which the UN is supposed to stand—including saving “generations from the scourge of war” and affirming fundamental human rights and dignity.
The French initiative followed a year-long Swiss-led campaign, which called upon UN member States to refer the Syrian situation to the ICC, because Syria has not ratified the Rome Statute of 1998. The initiative’s failure follows the declaration of the Office of the High Commissioner on Human Rights in January 2014 that it is no longer able to count casualties in Syria. Together, these developments raise the frightening possibility that the problem of impunity in Syria will gradually fade from the UN agenda.
The international community has sought to traverse historic distances since the atrocities of Yugoslavia and Rwanda in the 1990s. There is now a permanent and purportedly universal system of criminal justice, which, in the present tremendously polarized Syrian context, could, at least, provide a structure for the objective naming of atrocious acts of violence as crimes. Surely, this system cannot by itself resolve the conflict or bring solace to the victims. Nonetheless, it could offer some measure of justice, letting victims know that a process could be put in motion to underwrite their long and arduous procession from naming the crimes against them to healing the wounds they inflicted. To demonstrate its credibility, however, this system of justice needed to act in the face of grave crimes in Syria by enabling the ICC to exercise jurisdiction.
Instead, the Security Council showed, yet again, its structural inability to see the Syrian question through the prism of Justice. Accountability for the gravest crimes ranked as less important than the pursuit of a political solution. Through Geneva I and II, the motto was: give priority to the restoration of peace through political negotiation, and let the Syrians address the question of impunity themselves. This approach is blind to the reality of the Syrian tragedy. For many Syrians, the escalation of the conflict is inextricably connected to the persistence of impunity. The failure of the international community to seriously address the question of impunity in Syria for so long has normalized the proliferation of violence in the country and seriously undermined the prospect of a political solution. By failing to pass a resolution addressing impunity, the Security Council has sent a chillingly straightforward message to the perpetrators of violations of International Humanitarian Law in Syria and in other regions: escalating violence improves your chances of securing a seat at the negotiating table. A Syrian political process that is negotiated at the expense of accountability is impossible. It carries the seeds of further atrocities and injustice. Instead, addressing impunity must become a defining criterion for any political process.
It is now very difficult to predict the consequences for Syria, of the Security Council’s failure. For Syrians, the international community has shown itself to be unwilling and unable to genuinely prosecute the grave crimes occurring in the present degenerative state of barbarism in their country.