As I write this piece, the war in Syria continues to intensify. The future of many thousands of warring Syrians- and more worryingly- that of the millions of sandwiched women and children, continues to hang by the skin of their teeth. One masterstroke to ending this crisis, even though it might seem egregious to many, could be granting amnesty to Assad in exchange for a transition to peace. The possibility has been expressed feebly before, but without the due attention it deserves.
The granting of amnesty to criminal leaders-often pejoratively termed ‘peace verses justice’- has proved to be the harbinger of peace in several instances before, most notably in those of Raoul Cédras (Haiti), Charles Taylor (Liberia) and in the resettlement of South Africa post Apartheid. However, the door to amnesty has restricted access under International Law. Certain crimes- which carry a ‘duty to prosecute’- close this door on the individual who commits them. In this piece, I give a detailed account of such crimes and assess whether the option of granting amnesty to Assad is still open.
Under International Law, there are only a few crimes which fall under universal jurisdiction, these are- Grave Breaches of Geneva Conventions, Genocide, Torture and Crimes against Humanity. Universal jurisdiction implies any State can prosecute those guilty of such crimes, irrespective of geographical location where they are committed. However, not all of these crimes carry a duty to prosecute on the part of the international community. A more detailed analysis follows:
1. Grave Breaches of Geneva Conventions: Geneva Conventions still form the backbone of Laws of War, and prosecution of individuals found guilty of Grave Breaches is not only strictly mentioned in Common Articles 49/501 of the Geneva Conventions but has also become embedded in Customary International Law, and thus, has application of Aut dedere aut judicare (prosecute or extradite) principle. However, for States other than those on whose territory violations take place, the duty to prosecute lies only in case of “international armed conflict2.” Indeed, the option of amnesty not only remains open in case of a non-international armed conflict but is also encouraged by Article 63 of the Second Additional Protocol to Geneva Conventions which mentions granting “broadest possible amnesty” to participants in a civil war. This principle was reinforced by South African courts while granting mass pardon to perpetrators of the Apartheid regime. Even though Rome Statute, under Article 8, has significantly blurred boundaries between Grave Breaches and other war crimes, thus paving way for convictions to be made even in non-international armed conflicts, it does not establish that there is yet an unqualified duty of international States to prosecute in case of violations in a civil war.
Thus, Mr. Assad, involved only in a non-international armed conflict, can indeed be granted amnesty outside Syria, since Syria is still obligated to prosecute him if he is convicted of war crimes within Syria.
2. Genocide: The crime of genocide was assigned a formal definition by the Genocide Convention of 1951. While subject to universal jurisdiction, the duty to prosecute those guilty of genocide lies only with the State- if it’s party to the Convention- where the crime was committed, or with an international tribunal with jurisdiction over the State, as mentioned by Article 64 of the Convention. Even though ICJ’s ruling in the Bosnian Massacre suggests a growing sense of duty to prosecute genocide, Customary International Law to this effect has not been established. It is noteworthy that Saddam Hussein, guilty of Kurdish Genocide in 1988, was offered refuge in Bahrain before US invasion in 2003, thus setting the precedent that amnesty by a foreign State could be considered for a genocidal leader.
In spite of Syria being party to the Convention, it’s hard to establish if Assad’s committing genocide, which would require mass killings of a national, ethnic, religious or racial group. Hence, yet again, amnesty remains an option.
3. Crimes against Humanity: This category of crimes continues to be the most ill defined amongst all those which fall under universal jurisdiction. Such crimes are also by and large precluded from duty to prosecute under International Law. Several commentators have raised an outcry against granting of pardon/amnesty to those guilty of Crimes against Humanity, arguing that such crimes carry duty to prosecute based on Customary International Law. Notwithstanding such notions, it must be realized that Customary International Law arises from practices of several States over a long period of time, and such practices clearly show propensity to grant asylum in instances of Crimes against Humanity, as seen in case of South Africa, Haiti and Sierra Leone. Critics of granting pardon to those accused of Crimes against Humanity cite the 1967 UN Declaration on Territorial Asylum as the earliest international recognition of a legal obligation to prosecute perpetrators of crimes against humanity. However, General Assembly resolutions are not binding and at best are only aspirational in prosecution of Crimes against Humanity.
Hence, Mr.Assad, though very likely guilty of Crimes against Humanity, still retains the right to asylum.
4. Torture: The Torture Convention of 1987, through Articles 5 and 7, as well as through Customary International Law, also has application of Aut dedere aut judicare principle. Thus, any State which is party to the Convention is obligated to prosecute those guilty of torture. The International Criminal Tribunal for Former Yugoslavia (ICTY) stated in Prosecutor v. Furundžija5 that there is a jus cogens6 for prohibition against torture. It is noteworthy that attempts have been made to prosecute operatives at the infamous Abu Ghraib Prison in German Courts, thus establishing universal jurisdiction of Torture Convention. Charles Taylor, the erstwhile dictator of Sierra Leone, in spite of being found guilty of torture by the Special Court for Sierra Leone, was granted amnesty because none amongst Sierra Leone (where violations occurred), Liberia (the State of accused) and Nigeria (where amnesty was granted) was party to the Convention at the time violations were committed.
It is quite likely that Assad’s forces might have resorted to torture. Syria being party to the convention, if Assad is found guilty of such violations, he cannot be granted amnesty anywhere in the world.
The above analyses show us that Assad is not really on sticky ground in terms of bagging an asylum deal as long as he’s not found guilty of torture. However, no analyses would be complete without evaluating the role of International Criminal Court (ICC). It is noteworthy that Syria is not party to Rome Statute, thus granting Assad immunity from suo moto cognizance by ICC. However, the Security Council could still decide to refer Assad to ICC. If this were to happen, and if ICC were to convict Assad of any of the above crimes, including Crimes against Humanity, it would be binding upon all nations of the world to prosecute him. However, approval of Security Council would require Russia’s nod, which, given its resoluteness in defending Syria, seems implausible.
In the unlikely event that Assad is tried by ICC, or is found guilty by any court with jurisdiction over Syria, Assad, being the Syrian Head of State, could resort to defence based on his official capacity.
“L’etat, c’est moi” (I am the State)- famously attributed to Louis XIV- monarch of France- eulogizes the near absolute immunity enjoyed by a Head of State from prosecution by another State, as established by Customary International Law. A significant modern day conflict between duty to prosecute and Head of State immunity arose when a Belgian court convicted the Congolese Foreign Minister (assumed to enjoy same immunity as Head of State) for Genocide. The ICJ, in a landmark decision in Belgium vs. Congo (2002)7, ruled that senior State officials enjoyed immunity from prosecution by domestic court of other States even for serious crimes. However, the Court ruled that immunity did not extend to prosecution by international tribunals.
The conflict between duty to prosecute and Head of State immunity (also enjoyed by former Heads of State) again came to a head when Spain demanded UK to extradite former Head of State of Chile, Augusto Pinochet. In yet another landmark ruling, UK decided to waive Pinochet’s Head of State immunity based on violations of Torture Convention, concluding that prevention of torture had acquired a jus cogens nature and thus superceded Customary International Law, thereby mandating that violators be punished irrespective of their official capacity.
In light of the above precedents, and knowing full well that it would be nearly impossible for ICC to try Assad, it seems that the Torture Convention could well prove to be his Achilles’Heel when it comes to getting safe haven abroad.
Granting amnesty to criminals in exchange for vacating power is not, and can never be, panacea for war, though sometimes even the omnipotent international community has to bite the bullet to ensure immediate restoration of peace. To ensure enduring tranquility, justice must be brought to violators of IHL. However, for now, amnesty to Assad might well be the silver bullet the beleaguered Syrians are looking for.
1.Seywall and Kaysen, The US and the International Criminal Court, Rowman and Littlefield Publishers, 2000
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