Amidst the din of the media campaign against Russian actions in Aleppo, one of the most specious and cynical threats made against the Russians and Syrians is that they might one day face prosecution on war crimes charges.
There is no legal basis for these threats, and the Western political leaders and media commentators who make them know this.
Firstly the Russian and Syrian bombing of eastern Aleppo is almost certainly not a war crime.
Western claims that the Russians and the Syrians have been deliberately targeting civilians, hospitals, other medical facilities, and schools, are fiercely disputed and are almost certainly untrue.
President Assad in a recent interview with Associated Press pointed out that there is no conceivable political and military interest in them doing it, and that no one has ever provided one. Here is what Assad had to say about it
“We don’t attack any hospital. Again, as I said, this is against our interests. If you put aside the morals, that we do not do it morally, if I put it aside, I am talking about now, let’s say, the ends justify the means, if I want to use it, we don’t have interest. This is how we can help the terrorists if we attack hospitals, schools, and things like this. Of course, whenever you have a war, the civilians and the innocents will pay the price. That’s in any war, any war is a bad war. There is no good war. In any war, people will pay the price, but I’m talking about the policy of the government, of the army; we don’t attack any hospital. We don’t have any interest in attacking hospitals.”
(bold italics added)
What Assad is saying is even if the Syrian military were conducting the war in a completely ruthless ‘end justifies the means’ way, there would be no conceivable reason to attack “hospitals, schools, and things like this” because the only ones who would benefit would be the Jihadis
Assad is obviously right. As he says, the only people who would benefit if the Syrian or the Russian militaries deliberately bombed “hospitals, schools, and things like this” would indeed be the Jihadis. That makes it all but inconceivable the Syrian and the Russian militaries are doing it.
Assad’s point is in fact so obviously right that as the transcript of the interview shows his interviewers from Associated Press had no rejoinder to it. Instead they changed the subject to the White Helmets and whether Assad supported awarding them the Nobel Peace Prize.
It is overwhelmingly likely that the Syrian and Russian militaries in Aleppo and elsewhere in Syria, when they carry out bombing, are targeting the Jihadis they are fighting. Any hospitals, schools or civilians in Aleppo or elsewhere that get bombed in the process are almost certainly bombed by mistake. That is the only thing that makes sense.
If the bombing of hospitals and schools and the killing of civilians is a tragic but unintended by-product of a war fought against a savage and ruthless enemy – as Assad says – then no war crime has been committed, and the question of a war crimes prosecution does or should not arise.
Beyond this fundamental issue of fact, there is also a fundamental issue of jurisdiction.
The International Criminal Court, the only international court with a broad international jurisdiction to try cases of war crimes, only has jurisdiction to try prosecutions of nationals of states which have either ratified the Rome Statute or been referred to the International Criminal Court by the UN Security Council.
Neither Russia nor Syria have ratified the Rome Statute. Nor is there any possibility that Russia would ever agree that the UN Security Council refer either Syrian citizens or its own citizens to the International Criminal Court.
That means that the International Criminal Court has no jurisdiction to hear war crimes prosecutions against Russia or Syria either in connection to what is happening in Aleppo or anywhere else in Syria. Any talk that it does is nonsense.
There have been some suggestions that prosecutions against Syrians or Russians for war crimes might be brought in the national courts of some Western states. The problems with doing that are however practically insuperable.
The appropriate national courts to hear such prosecutions for war crimes committed on Syrian territory would in fact be those of Syria on whose territory the war is being fought. That could of course only happen if the Syrian government were overthrown and replaced by a pro-Western one.
Short of an all-out war between Russia, Syria and the Western powers, that no longer looks likely to happen. If it did there would be far more serious things to worry about than war crimes trials.
Some Western commentators have pointed out that certain Western countries have claimed what are known as ‘universal jurisdictions’ for certain crimes, which means that they able to prosecute these crimes in their own courts even if they have taken place in some other country.
This is a deeply contentious topic, with no full international consensus of which crimes can be prosecuted in this way. By way of example, Germany permits prosecutions for genocide, crimes against humanity, and war crimes, by its courts wherever they are committed; France for torture, terrorism, nuclear smuggling, naval piracy and airplane hijacking; and Britain for sexual offences against children, certain crimes of fraud and dishonesty, terrorism and bribery.
The United States, in keeping with its claim to be the ‘exceptional country’, is increasingly behaving as if its courts have universal jurisdiction over every crime in every country, though it has never gone quite so far as to say it.
There is however no realistic possibility of Syrian or Russian nationals being tried in this way. The reasons for this are practical even more than legal.
In order to be tried on war crimes charges before the courts of some Western country, these Syrian and Russian nationals would first have to be arrested and brought to this country, either by being arrested whilst travelling in the country (as General Pinochet famously was when he was travelling in Britain) or because they had been arrested in some other country and extradited from it to the country, or (as Adolf Eichmann was) because they had been kidnapped and brought to the country by force.
These sort of things nowadays actually happen fairly regularly, including to Russian citizens. However it beggars belief they would happen in this case because of the appallingly dangerous precedent it would set.
The Western powers – notably the US, Britain, France and Israel – have been involved in far more wars than Syria or Russia. If it became the practice to snatch Syrian or (especially) Russian citizens whilst they were travelling abroad to bring them before Western courts on war crimes charges, then the Russian before long would surely start to retaliate by doing the same thing to Western citizens.
With far more Western citizens involved in foreign wars and travelling abroad than Russians, this would create a potential game of tit for tat the Western powers could never win. That fact alone puts this whole idea of prosecuting Russians (and probably Syrians) in Western courts out of contention.
The simple fact is that short of achieving regime change in Moscow there is no way the Western powers could put their threats of war crimes prosecutions against the Syrians and Russians into effect. Despite empty gestures like the recent vote by a bare majority of states in the UN Human Rights Council to investigate alleged war crimes in Aleppo, the Western powers of course know this.
Since the Western powers know that there is no possibility of Syrians or Russians being prosecuted for war crimes, why are they talking as if it might happen? The short answer is because it forms part of their propaganda campaign against the military campaign the Syrians and the Russians are waging to crush the Jihadis in Aleppo.
Whilst the Russians of course knows this and are not going to be deterred or impressed by it (Putin has called it “political rhetoric that does not have great significance”) the cynicism involved in pretending to threaten something which will never happen is still startling.