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SYRIA AND THE POWER OF WRONGDOING:

WAR AND WAR CRIMES IN 21st CENTURY

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By James Gow

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The Montréal Review, January 2014

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"This book should be read by all, political and military, who seek to use armed force to achieve their ends. With great clarity James Gow shows the relation of law to war and how this relationship has changed along with the way war is practised. As importantly, he shows what could happen to those practioners who fail to foster this relationship: failure and possibly prosecution."

--General Sir Rupert Smith KCB DSO OBE QGM

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Syria is awash with war crimes. The people suffer deliberatively inflicted hardship and harm. This is war marked by war crimes – the hallmark of the last three decades, where almost every armed conflict has been marked by strategies of war crimes. Syria is among the worst cases. Yet, those committing these crimes are pursuing a high-risk, probably dead-end, policy that may yield short-term success in their own eyes and some degree of control. This is because the record increasingly shows three things.

First, those who adopt strategies based on war crimes tend to lose, in the end, no matter how much their cocktails of murder, mutilation, forcible expulsion, torture and rape seem initially to bring them the upper hand – Milosevic, Karadzic, Mladic, Taylor, Kambanda, Bizimungu, Saddam Hussein, Qadaffi, however long they lasted, were all overcome, in the end. Secondly, these losing leaders and some of their henchmen (and the odd woman) increasingly end up facing some form of internationalised criminal justice, if they do not die first – as happened to all of those named in the preceding list, except Qadaffi (even the elderly survivors of the Khmer Rouge responsible for the Cambodian genocide came to face trial for international crimes forty years after the crimes were committed). Thirdly, legitimacy defines the outcome of contemporary armed conflicts, not victory through direct military engagement in the battlespace (even if this remains significant) – and little undermines legitimacy more, in the end, than association with wrongdoing. The initial power that wrongdoing seems to reflect and protect is illusory. The real power of wrongdoing is to undercut legitimacy – and with it, success. [As argued in my book, War and War Crimes.] Bashar al-Assad – and his even more gruesome brother, Maher – are the latest names on this list of shame and eventual failure, as well as prospective prosecution for war crimes. Bashar is the new Milosevic – or Saddam, or Kambanda, of Qadaffi.

Bashar’s and Maher’s Syrian government forces bear the greatest responsibility for the crimes that mark the Syrian conflict. Of course, some in the opposition are also responsible for atrocities, especially those elements associated with al-Qa’ida, as a UN report in January 2014 noted. That report, plus earlier ones by the UN and by US and EU-funded investigators, led by Canadian William Wiley, and an independent report, also published in January 2014, authored by three former war crimes prosecutors, all make clear that the Syrian government bears overwhelming responsibility for the alleged crimes.

The war crimes prosecutors’ report – by Sir Desmond da Silva (formerly Chief Prosecutor, Special Court for Sierra Leone - SCSL), Sir Geoffrey Nice (lead Trial Attorney in the prosecution Slobodan Milosevic, International Criminal Tribunal for the former Yugoslavia - ICTY) and Professor David Crane (the original Chief Prosecutor, SCSL) – produced evidence of torture and killing by the regime, including photographic evidence smuggled out of Syria by a defecting police photographer, codenamed ‘Caesar’. However, while that evidence itself has limitations, it is sufficient to be a foundation for charges under international law, not least because the 55,000 photographs and the reasons for them – to cover up government responsibility for 11,000 deaths following physical mistreatment and to prove deaths and identities to families, circumventing even Syrian law – are testimony to the crimes committed. The attempted cover-up betrays the commission of crimes.

The UN investigation has wider scope and broader evidence of war crimes, laying the foundation for eventual prosecution. The deliberate shelling of communities, such as Homs and Aleppo, is redolent of artillery and aerial action in the Bosnia war that later produced convictions for unlawful targeting at the ICTY. Reports from hospitals and experienced international medical staff confirm that the reported 100,000 victims are overwhelmingly women and children, far in excess, even, of most other conflicts marked by war crimes – not males and not males apparently killed in armed conflict.

Most of all, the use of chemical weapons constitutes an unequivocal crime in the Statute of the International Criminal Court (ICC), which follows longstanding international norms and the Chemical Weapons Convention (CWC). Article 8(2) of the Statute completely outlaws the use of chemical weapons – as does the Convention. Whereas war crimes are usually subject to some assessment of context and the balance of necessity and proportionality in the means used, at a given moment, the prohibition on the use of chemical weapons is absolute – no degree of purported necessity can justify their use. Of course, as Syria is not a party to the ICC or the CWC, there will be arguments in the government’s defense that that, as a non-party, this law cannot be applied. However, whichever court eventually deals with Syria’s war crimes (and the ICC or an international-municipal hybrid, following the Sierra Leone model) there can be little doubt that its mandate will include the use of chemical weapons, given the general consensus regarding their utter unacceptability. There will also be arguments that the government forces were not responsible for the use of chemical weapons – and direct proof will be hard. Investigators have not attributed use, so far. However, there is no real doubt that only the government’s forces could have the sophistication and competence to hold and use these weapons of mass destruction. They will almost certainly be on the eventual indictment for war crimes.

That indictment, and the widespread perspective already in place around the world that Syrian government forces have been conducting a campaign of war crimes, critically challenge the regime’s legitimacy internationally, as well as among large parts of the Syrian population that oppose it and rose up against it. That critical challenge means that the Assad brothers and their cronies cannot win. They are lost. The best they can do is hang on, trying to protect themselves, as long as they can, before, eventually, they lose.

Meanwhile, the world watches on, hosting diplomatic negotiations in Geneva, in January 2014, in the hope that these can stop the cruelty and killing. There is little more than faint hope that these talks can stop the murder – any more than similar talks in the same place halted war and war crimes in Bosnia and Hercegovina in the early 1990s. Indeed, there are many parallels with events in Bosnia and Hercegovina – starting with the strategy of war crimes conducted by those with the preponderance of armed force on their side. The similarities also include the hesitant, uncertain, divided international community, lacking a clear perspective on the conflict and either the strategic understanding, or the will, to intervene to make a difference – while remaining silent on the reality that non-intervention is a form of intervention itself, allowing the war crimes to continue, unchecked. Of course, for all the grave similarities in the situation and the news reports two decades apart, there are crucial differences that make action even harder than it was over Bosnia – the reality that al-Qa’ida-linked forces are the most successful part of the armed opposition, so hardly the material of allies for the US, and the fact that Russia would rather stubbornly assert its power to block action and allow crimes to continue in Syria, whereas the Russia of Yeltsin, in the 1990s, while wanting respect for its power also saw the need to for cooperation and humanitarian action.

But, despite this, and Moscow’s insistence on making the opposition and the regime equals in the commission of war crimes, there are signs, including their acknowledgement of UN reports on the atrocities, that Russia may not block initiatives to prosecute war crimes. That is a small sign of the way in which global recognition of wrongdoing dissolves legitimacy and also how the Damascus government will, in the end, be undone in its strategy of war crimes. In contemporary warfare, the power of wrongdoing is, increasingly, to define the outcome of wars.

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James Gow is Professor of International Peace and Security and Director of the War Crimes Research Group, King’s College London, as well as Non-Resident Associate at the Liechtenstein Institute, Princeton University. He was an Expert Advisor to the Office of the Prosecutor at the UN International Criminal Tribunal for the former Yugoslavia, where he was also the first witness to give evidence. He has also served as an expert advisor to UK Secretaries of State for Defence. He is author and editor of numerous books, including War and War Crimes: the Military, Legitimacy and Success in Armed Conflict and Prosecuting War Crimes: Lessons and Legacies of the International Criminal Tribunal for the former Yugoslavia, and Security, Democracy and War Crimes: Security Sector Reform in Serbia (all 2013). In 2013,  he began a 3-year Leverhulme Major Research Fellowship to study the trial of General Ratko Mladic at the Yugoslavia Tribunal and the Tribunal’s legacy.

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