The Threat of Inaction in Response to Violations of International Law: A Syrian Case Study
Since its beginning in 2011, the Syrian civil war has led to approximately half a million deaths and left an estimated 16.7 million people, 70 percent of Syria’s population, in need of humanitarian aid. It is one of the largest displacement crises in the world, with over 14 million people affected. What had started in 2011 as a peaceful protest against the government of President Bashar al-Assad quickly escalated into armed clashes and, within a couple of months, grew into a large-scale militarized rebellion. In the years that followed, allegations and evidence of crimes against humanity, war crimes, and violations of international law perpetrated by the government of Syria began to amass. Perhaps most atrocious among these are the claims of Syria’s repeated use of chemical weapons (CW) against its own citizens. Now, with the recent fall of Assad’s administration on 8 December 2024 and his subsequent escape to Russia, questions remain about the future of Syria and whether the perpetrators of the Assad government’s actions will be brought to justice.
The continued failure to prosecute Assad and his senior officials threatens to undermine international law and the Western-led rules-based order. The situation in Syria, therefore, serves as an excellent case study of the international community’s ineffective response to war crimes and violations of international law. It demonstrates a fundamental weakness in the enforceability of international statutes, highlights the dangers of the lack of substantive action, and threatens to cause irreparable damage to the standing of the US and its allies on the world stage. To address this dangerous precedent, it is crucial to understand the structural and geopolitical factors limiting both past and potential actions and responses from the international system and consider recommendations for possible solutions to this dangerous precedent.
The Syrian Civil War and Syria’s Use of Chemical Weapons
Perhaps the most notable use of CW during the Syrian civil war was the 2013 attack on Ghouta, during which the Syrian government deployed rockets against citizens that contained the deadly nerve agent sarin, resulting in over a thousand deaths. In response to the international outrage drawn by this attack, in October 2013, Syria formally ceded to the Chemical Weapons Convention (CWC), an international statute created to eliminate all chemical weapons of mass destruction (WMDs). Syria was subsequently required to destroy its chemical arsenal under the supervision of the Organization for the Prohibition of Chemical Weapons (OPCW), the implementing body for the CWC. Despite this, there have been substantial discrepancies in Syria’s declarations regarding the completion of these efforts, with materials left unaccounted for or their destruction not verified according to OPCW standards. As such, Syria’s destruction of its chemical stockpiles cannot be considered complete, and it consequently remains in violation of the CWC.
Syria’s breaking of international law is further underscored by the fact that, in the years since becoming a State Party to the CWC, accusations of Syrian use of CW in attacks on citizens have only escalated. This includes assaults such as the one in Khan Shaykhun in April 2017, which resulted in approximately 100 deaths, and another in Douma in April 2018, which led to 43 deaths. In total, there have been more than 300 CW attacks over the course of the Syrian civil war. Chlorine gas has been the most commonly used agent throughout the conflict, found in 91.5% of attacks, followed by sarin and sulfur mustard gas. 98% of CW attacks can be attributed to the Assad administration, and the remaining 2% to the Islamic State (IS). Though not the primary focus of this paper, it is important to note the presence of IS in the conflict. IS has taken advantage of the ongoing civil war in Syria to form the Islamic State of Iraq and the Levant (ISIL) and take land in Syria for themselves in an effort to achieve their goal of rebuilding an Islamic caliphate. IS has been implicated in several CW attacks, including one on Marea in 2015. Currently, IS has been almost entirely ejected from Syria due to defeats from two different parties, respectively: the US and its allies and Assad, Russia, and Iran.
It is also worth considering why Assad would choose to use CW as his method of attack. The reasoning is multifold. While CW has limited practicality and utility, as has been demonstrated repeatedly in conflicts since World War I, it has the ability to create an unparalleled psychological response in an opponent, spreading widespread terror. It is the production of this effect that the Assad regime relies on as it attempts to quell rebellion by inspiring fear in and doling out mass punishments on its citizens. Beyond this, the use of CW was consistent with the general Syrian approach to counterinsurgency, as the government sought to depopulate large areas, particularly those outside of its control. Finally, CW is generally cheap to develop and offsets the Syrian army’s lack of more modern and sophisticated weaponry.
Legal Background
On 8 June 2023, Canada and the Netherlands (hereafter referred to as the Applicants) jointly filed a case at the International Court of Justice (ICJ) against the Syrian Arab Republic (Syria), accusing it of violating the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), to which all three states are party. In their joint filing, the Applicants alleged that “Syria has committed countless violations of international law, beginning at least in 2011, with its violent repression of civilian demonstrations, and continuing as the situation in Syria devolved into a protracted armed conflict.” They refer to specific violations, including “the use of torture and other cruel, inhuman or degrading treatment or punishment (“CIDTP”), including through abhorrent treatment of detainees, inhumane conditions in places of detention, enforced disappearances, the use of sexual and gender-based violence, and violence against children,” as well as “the use of chemical weapons which has been a particularly abhorrent practice to intimidate and punish the civilian population, resulting in numerous deaths, injuries and severe physical and mental suffering.” The Applicants simultaneously submitted a request for the indication of provisional measures, meaning an interim order from the ICJ that provides immediate protection for individuals or groups deemed to be under imminent threat.
Syria has been uncooperative through this legal process and has used various tactics to stall and delegitimize the proceedings. The first hearing was initially scheduled to be held on 19 July 2023, but at the request of the Syrian government, it was delayed until 10 October 2023. Ultimately, however, Syria did not participate in the Oral Proceedings and instead submitted a letter to the Court presenting its arguments. The Syrian government continued to maintain that the proceedings were illegitimate and that the allegations of torture were lies.
This demands the attention of the international community, not only because of the millions of Syrians who continue to suffer in the aftermath of this horrible conflict but also because Syria’s blatant disregard for its commitments under international conventions and the authority of the ICJ sets a dangerous precedent. This has the potential to have serious security implications as it undermines the authority of international institutions, laws, and agreements.
Outside of the ICJ, there are over 300 cases related to the conflict in Syria being prosecuted through Universal Jurisdiction (UJ). UJ is a legal concept that allows any state to put out an arrest warrant for and try an individual for violations of international law, regardless of their nationality or where their alleged crime has been committed, so long as that state has adopted relevant domestic legislation. For example, UJ allowed for the 2022 conviction of Anwar Raslan by a German court for complicity in crimes against humanity. Raslan, a former Syrian intelligence officer, was sentenced to life in prison. This was the first time that a senior Syrian official was tried and charged with crimes related to the conflict. However, while UJ has been one of the most effective tools for bringing to justice those responsible for the violations of international law during the Syrian conflict, it nonetheless has mostly tried relatively low-level officials and has failed to reach most of those principally responsible for the atrocities, namely Assad and his senior officials.
The Presence of Foreign Actors
When considering further efforts to prosecute Assad and his regime for crimes against humanity committed during the Syrian conflict, it is important to understand the principal challenges that undermine the effectiveness of future actions. One of the most significant problems in adequately prosecuting these atrocities is the consistent interference of external actors throughout the conflict. Primary among these has been Russia, with its steadfast shielding of Syria from accountability. In the years since the beginning of the conflict, Russia has blocked 17 UN Security Council (UNSC) motions against Syria, committed military forces in 2015 to help the Assad regime stay in power, thwarted UN investigations, and is now harboring Assad himself. Russia has been resolute in its immovable and unequivocal support for Syria. Had Russia not taken this stance and had it not consistently interfered in any efforts to oppose Syria and bring those responsible to justice, the international community could have taken harsher action and a stronger stance. As it stands, Russia will continue to be a hindrance to any efforts for justice, as Assad cannot be brought to justice so long as he remains sheltered by Russia.
Russia has incentives to shield Assad. Russia itself is accused of having shown callous disregard for civilians during its military actions in Syria, bombing schools, hospitals, markets, workplaces, homes, and more, in clear violation of international law and the laws of war. This will further entrench Russia in its unwillingness to allow prosecution of Syrian war crimes, as that would open its own officials to scrutiny and culpability. Russia’s support of Assad is not so much related to a specific preference for his leadership but rather is more rooted in Russia’s broader goals to expand its global influence. The current Russia-Syria relations are based on fundaments dating back to the Cold War, at which time the Soviet Union was providing Syria with armaments and other aid. This dynamic weakened with the collapse of the Soviet Union in the 1990s but saw a rise again with the ascension of Vladimir Putin through the 2000s as part of his greater plan to restore Russian power and hegemony. A catalyst came in the form of the 2011 Arab Spring and the overthrowing of Russian-backed Libyan dictator Muammar Gaddafi. With this, Russia lost substantial influence in the Middle East and turned to Syria and Assad as a means by which to restore it, thereby strengthening Russian global influence.
China has also emerged as a strong supporter of the Assad regime, having vetoed 8 UNSC resolutions (out of the only 16 times it has exercised that power) related to Syria. Similar to Russia, China’s support for Assad is a strategic move in response to perceived threats, both domestic and foreign. China has a significant population of Uyghurs, a Turkic ethnic group and Muslim minority from western China, whose treatment by the Chinese government has sparked widespread accusations of genocide. Thousands of Uyghurs associated with the Turkestan Islamic Party (TIP) are reported to have traveled to Syria to join the fight against Assad to acquire skills that could aid them in their struggle against the government back home, posing a serious domestic threat to Beijing. To achieve its foreign policy objectives, China has used Syria as a stepping stone in its Belt and Road Initiative (BRI). It is through the BRI that China seeks to expand its power and influence. Syria joined in 2022, supporting Beijing’s efforts to project an image of deep interconnectedness with the Middle East and North Africa.
Legal Loopholes and Failure to Prosecute
International institutions, in particular the International Criminal Court (ICC), have systemic limitations which complicate the prosecution of Syrian crimes. The ICC is unable to prosecute as Syria is not a member of the Rome Statute, the convention which affords the Court jurisdiction over all States Parties. For the ICC to be granted access, a referral from the UN Security Council would be required. However, the motion failed when put to vote in 2014 due to negative votes from two permanent members, China and the Russian Federation. The ICC’s lack of access leaves a prosecution gap, as the ICJ handles only state disputes, while the ICC can try individuals for international crimes. Furthermore, the machinations of China and Russia in this regard display the complications in maintaining legitimacy in international proceedings and institutions, as bodies such as the UNSC are often used by members as a means of manipulating their process to achieve or prevent interference in their own goals.
A particularly significant void exists regarding the prosecution of Syria’s violations of the Chemical Weapons Convention (CWC). Compliance with the CWC is monitored by the OPCW, which has repeatedly accused Syria of using CW. The OPCW has been thrust into a more central position in the global fight against CW as a result of the conflict in Syria. While the OPCW may conduct investigations, its function is primarily to be a watchdog and has no jurisdictional power. As such, it has limited options in the case of noncompliance. It may request that the State Party rectify the situation, and it may use various methods of persuasion to achieve this. For instance, it may suspend the privileges of the accused State Party under the Convention, recommend collective actions to other State Parties in accordance with international law, and initiate investigations. If this is unsuccessful, it can refer the issue to the UN General Assembly (UNGA) and UNSC to take further action. The OPCW can also respond to alleged uses of chemical weapons in a variety of ways, including Fact-Finding Missions (FFM), a process established in 2014 in reaction to the allegations of Syrian CW use. While these actions are valuable in maintaining and verifying compliance with the CWC, they do not help in the prosecution of crimes already committed.
Another consideration is that, at times, international legal proceedings may not only be ineffective but also directly harmful. For example, the ICJ’s ruling, while in many ways an important milestone, also seems to provide a cover for the continued atrocities of Syria’s regime. In the wake of the CW attacks, many European governments concluded that parts of Syria could be considered safe and adopted policies aimed at forcing Syrian refugees to return to their home country despite the continued threat of violence. Over the years, Denmark has controversially declared more and more regions of Syria safe for refugee return despite reports indicating the contrary, putting those under the temporary protection of the Danish government at risk of forced return. Similarly, in 2023, Cyprus’s Interior Minister Constantinos Ioannou asked the EU to reevaluate its categorization of Syria as an unsafe place for refugee return. Until it does so, European countries are unable to officially deport people back to Syria.
The Threat of Non-Action
At a press conference in 2012, President Barack Obama was asked whether Syrian stockpiling of CW would be sufficient to prompt a military response from the US. He replied, “A red line for us is we start seeing a whole bunch of chemical weapons moving around or being utilized. That would change my calculus.” Similar sentiments were echoed by leaders around the world. Nevertheless, as accusations mounted in the years that followed, President Obama and other world leaders looked for ways to avoid making good on their threats. This came in the form of a deal in which Russia acted as guarantor, wherein Syria agreed to destroy its stockpiles of CW. However, these efforts were ineffective due to the lack of Syrian cooperation, Russia providing cover for its noncompliance, and the lack of a stronger international response.
The concept of the red line did not completely disappear. President Donald Trump reiterated similar sentiments during his first term and even launched strikes against Syria in 2017 and 2018. He did so with the intention to, in his own words, “establish a strong deterrent against the production, spread, and use of chemical weapons.” While this may seem like an adequate response, it falls short of having a real impact. Indeed, it could be argued that the best deterrent would have been persistent American participation in the resolution of the situation in Syria and addressing the deeper problems that were causing the continued turmoil rather than sporadic and relatively unproductive strikes. President Trump made it clear at the time that he had no interest in pursuing such a policy rendering his actions ineffective.
The most important conclusion to draw from these circumstances is that there is danger in non-action. When the US makes threats and does not follow through, it weakens the value and strength of an American promise and commitment and ultimately, the notion of the red line itself. American credibility drops both in the eyes of its allies as a security guarantor and as a deterrent to adversaries who subsequently may feel emboldened to push the boundaries of or entirely disregard international law. Ultimately, this poses a national security risk to the US, its allies, and all other actors in the international system, as it increases the potential of a resurgence of actions restrained and prohibited by international statutes. This includes the use of CW and WDMs in conflict zones, as well as the potential normalization of war crimes and inhumane treatment of both civilians and combatants.
Recommended Action
The fall of the Assad regime provides an opportune moment to revisit this situation and the importance of prosecution in maintaining the legitimacy of international institutions and the Western liberal order. The option of a UNSC referral to the ICC, while the most obvious, must be dismissed as a serious possibility. Such an action would require the agreement of all permanent members. Given that Russia is currently harboring Assad and a regime change in Russia is unlikely in the near future, compounded by Russia’s own culpability, it seems unlikely that it will ever be persuaded to consent to such measures. However, there remains a small possibility that the ICC could become involved. Under Section 12(3) of the Rome Statute, even a state not party to the convention may submit a declaration granting the ICC retroactive jurisdiction in the prosecution of certain crimes. While this would never have been a possibility under the Assad regime, Syria’s new administration might be convinced to take this action in the future.
The new leaders have signaled their desire to pursue justice themselves and seek the return of Assad’s officials who are scattered abroad. However, the Syrian justice system is nearly nonfunctional, having long been used by the Assad regime as simply another tool to exercise its will. As such, judicial functions in Syria will have to be rebuilt. This could be a place for international jurists to provide assistance in successfully constructing a fair justice system. However, this process would take a long time, and Syrians’ desire for justice would understandably be fairly urgent. Given this, it would be inadvisable to leave prosecution efforts to Syrian authorities, as those trials may not be perceived as entirely fair and unbiased. The new Syrian leadership should be encouraged to join the Rome Statute or at least allow the ICC retroactive jurisdiction. Furthermore, the ICC operates under the principle of complementarity, meaning that it defers to legitimate national judicial processes. As such, allowing the ICC access would not hinder the ability of the new Syrian government to seek justice itself.
One of the most effective ways of prosecuting Syrian war crimes will continue to be UJ. This will allow countries around the world to issue arrest warrants and try those accused of being complicit or orchestrating the atrocities. A variety of EU states, along with the US, the UK, Mexico, Israel, and others, are able to and have invoked UJ previously over various crimes. UJ allows authorities to conduct investigations on individuals even if they are not in their territory. If sufficient evidence of wrongdoing is found, then the state can issue an extradition request to the state where the individual is thought to be located. This will be important in the case of Syria, as domestic courts around the world will be able to begin investigations and pursue suspects who have been scattered around the globe. While Assad himself is being harbored by Russia, his top officials have spread around the world. Many intelligence officers behind Syria’s atrocities are trying to flee to Europe via human smuggling networks, which could allow them to be tracked and apprehended upon re-emergence.
Another suggested course of action is the possibility of creating an Exceptional Chemical Weapons Tribunal (ECWT). Led by Syrian rights groups and international legal experts, this initiative has laid the foundations of a possible new treaty-based court. This Tribunal would be able to not only prosecute violations from during the Syrian Civil War but all uses of CW around the world. This suggestion has been submitted to the Hague and remains to be acted upon.
It is worth reiterating that it will be very difficult to see many of the main actors in the conflict, namely Assad and his lieutenants, brought to justice. However, it is not hopeless, and the international system should continue to pursue as many paths as possible in this effort. In general, the situation in Syria can offer important lessons about the danger of non-action and complacency that might be applicable to future situations. Military action is sometimes necessary, though it is not always warranted, nor is it always the most effective solution. The international community, and the US in particular, should consider becoming more active participants in the maintenance of the rules-based global order and in the resolution of global conflicts rather than descend into isolationism, nationalism, and exceptionalism.
Conclusion
The Syrian civil war has been a devastating conflict plagued by the frequent, horrific, and inhumane use of CW by the Assad government against its own citizens in violation of international standards. This valuable case study shows how international, and in particular American, efforts to address these atrocities have been insufficient and ineffective. It also underscores the dangers of inaction, including the heightened national security risks facing the US and other international actors as a result of the threats to the rules-based international order. Failure to hold Syrian officials accountable for their use of CW and other violations of international law creates a dangerous precedent in which states and actors may feel increasingly empowered to ignore international law without fear of any consequences. This, in turn, may result in an increase in war crimes and the use of CW and other WMDs in conflict zones, including those considered vital to the national security interests of the US and its allies.
