JURIST Guest Columnist Leslie Esbrook, Yale Law School Class of 2015, shows how the current international framework applies to recent international conflicts…

Human Rights Watch released a report documenting war crimes committed by Syrian rebels on August 4 and urged the Security Council to refer the rebel groups to the International Criminal Court (ICC). The solution proposed by Human Rights Watch is a telling look at the current international legal regime: the world has infinite legal options available to stem the tide of the Syrian war, but the lack of political will among actors stymies any potential successes. Novel legal voices have forged a path to peace, repeatedly, but they remain out of touch with political realities that are not quick to use the war as a means to create new international law precedents.

We live in a world whose international legal structure has been informed by two major world wars in the past century that have led to a verbal repudiation of the traditional system of warfare as a means of resolving disputes. Embodied in the famous Kellogg-Briand pact, this new system envisions courts as the first arbiter-to assign rights, but also as the final arbiter-to mete out retributive justice for wrongdoing. The latter feature, by its very nature, concedes that violence among and inside nation states cannot be permanently abolished. Indeed, it comes as no surprise that the rebels have committed war crimes; such acts of indiscriminate killing have been committed time and time again in war. That is not to say that the acts will not go unpunished. The International Criminal Tribunal for the former Yugoslavia, most well known for prosecuting Serbian and Croatian war criminals like Radovan Karadzic and Slobodan Milosevic, has also prosecuted several of the persecuted Bosnian Muslim leaders for war crimes. Even now, the Bosnian government remains hostile towards turning over Bosnian Muslims who, targeted for genocide and crimes against humanity themselves, stand accused of retaliating in kind.

The example of the Bosnian war serves as an example of the realities of wartime justice. Both sides acted wrongly, both sides continued fighting as international actors balked at intervention, and post-conflict perpetrators were tried for their acts. Not only is the insistence to refer the rebels to the ICC misguided as an impossible political maneuver, it treats possible ICC investigation as an immediate solution to war that it was never intended to embody. If certain members of the Security Council refuse to recommend Assad to the ICC, tit-for-tat their counterparts will not serve up the rebels. Yet the larger problem remains—an emphasis on retributive justice when civilians continue to perish in wartime is like putting the cart before the horse. Documentation of war crimes is essential to ensure judicial and swift prosecution of perpetrators, but the prosecution of perpetrators will not occur until the conflict itself abates.

A similar claim can be made in response to Human Rights Watch’s assertions that Turkey is not doing enough to exercise its universal jurisdiction to prosecute rebel war criminals who are camping out on its south-eastern border. A focus on the possibility of exercising universal jurisdiction—which only 15 nations have exercised since the end of World War II—again misses Turkey’s more pressing humanitarian problem of protecting the half a million refugees it houses and affording them rights designated by the Convention and Protocol Relating to the Status of Refugees. These rights include free exercise of religion, legal assistance and access to courts, access to elementary education, and access to housing, all of which present difficulties to grant in the southeastern region of Turkey that was largely farmland and open vistas just a few years ago. Turkey is not currently a member of the ICC. Though Turkey has dabbled in the application of universal jurisdiction, it has done so only in the very politically-charged context of seeking to prosecute alleged Israeli crimes against humanity, in 2009. If those complaints stalled in the wake of renewed diplomatic efforts to build bilateral goodwill, the prospects of Turkey poking its nose in the affairs of amorphous groups who it generally supports in the fight against Assad seem improbable. Alienating Turkey with accusations of its ineffective border patrol or its devolution into a “safe haven for human rights abusers” risks jeopardizing the protections the country now grants to refugees, protections which others have praised in comparison to camps on Syria’s other borderlands. The changing shape and nature of the opposition rebel groups also means that border patrols who return asylum seekers feared to be engaged in war crimes without sufficient evidence may themselves be liable for violation of Article 33 of the Convention Relating to the Status of Refugees, which prohibits refoulement in cases where a refugee’s life or freedom would be threatened in his home country.

It is understandable that the Human Rights Watch report is grasping at the last straws of judicial possibilities to quash the Syrian conflict, unfeasible as they may be. Governments, academics and experts have run through several ideas to end the Syrian conflict, all blessed by under the umbrella of “legal” by international law standards, and the world has bypassed all of them. We could have unraveled the fuzzy concept of right to protect to justify intervention. The US and the UK officially maintain that unilateral intervention would be legal, either under humanitarian standards or under reprisal principles for Syria’s violation of the international Chemical Weapons Convention. Several commentators have suggested the possibility of a “Unite for Peace” [PDF] resolution passed by the General Assembly to grant authorization to intervene. Turkey has even shot down Syrian planes that have entered Turkish airspace, and could have used those incidents as justification for intervention under their right to self-defense. The world had come to the brink of intervention, but we refused to take the leap. Faced now with a chemical weapons withdrawal plan that is patchwork to cover up the hole of declaring chemical weapons a “red line,” legal commentators must bow to the political realities that reign supreme.

Does the impotence of the international legal framework (international law of war, Geneva conventions, international tribunals, customary international law) to prevent senseless loss of life in Syria signal a failure on the part of law? It surely indicates the difficulties of abiding by laws that have weaker enforcement mechanisms than domestic law, and enforcement that hinges on strong political considerations which look not only to correcting a current wrong but also extrapolate to future consequences. However, gaming out the possible scenarios for international action in Syria also revealed how expansive our current set of international norms is. Intervention could be justified by at least three different theories of international law. International courts will still have a role to play in post-conflict justice and truth and reconciliation efforts. Even the embattled differences of the P5 did not present an insurmountable roadblock to international legal sanction. International law from the perspective of theory did its part. Now, as the world waits for international actors to pick which of the many legal tools they will use after the chemical weapons retreat experiment, history may serve as a guide. Punishment of war crimes perpetrators will come post-conflict, and in the interim protections must be given to displaced persons who are accessible to ensure that their fundamental rights and freedoms are not lost in the shuffle.

Leslie Esbrook is the Submissions and Notes Committee Editor of The Yale Journal of International Law. Esbrook’s experience includes positions with International Criminal Tribunal for the Former Yugoslavia, Appeals Division, The Hague; City of Chicago Department of Law, Federal Civil Rights Division; US Department of State Embassy Paris and US Department of State US Mission to UNESCO.

Suggested citation: Leslie Esbrook, Prosecution of War Crimes Will Not End the Conflict in Syria JURIST – Dateline, Nov. 3, 2013, http://jurist.org/dateline/2013/11/leslie-esbrook-international-law.php.