To limit the violations by both sides and ensure justice for victims, South Africa and other key members of the international community should support the referral of Syria to the International Criminal Court.
Syrian human rights activists have collected the names of almost 40 000 civilians who have been killed in Syria in the past 19 months of civil war. Millions have been displaced within the country or fled to Syria's neighbours. The strife threatens to develop into a regional conflict. Syrian government shells have landed in Turkey, Lebanon and Israeli-occupied Golan, resulting in return fire, and the increasing sectarian tensions in Syria are endangering Iraq and Lebanon's fragile stability.
The Syrian authorities have committed many grave human rights violations since Syrian anti-government protests began in March 2011. Government forces and pro-government militias responded to the uprising by opening fire on peaceful demonstrators, arbitrarily detaining and torturing thousands and carrying out hundreds of extrajudicial executions. The escalating militarisation of both sides has plunged Syria into a full-scale armed conflict in which the Syrian army has used artillery and air power, often killing large numbers of civilians.
As the conflict drags on and intensifies, armed opposition groups are increasingly committing severe abuses, too. Opposition fighters have mistreated and, in some cases, executed people in their custody.
When I visited an opposition-controlled area in northern Syria in August, I interviewed several detainees held by opposition forces. About half of them told me that opposition fighters had beaten them while capturing them, or afterwards. Some still had bruises and black eyes. We documented the execution of at least a dozen people in opposition custody.
When Human Rights Watch raised these issues with opposition leaders, they assured us that they would end the abuses. Sadly, they haven't. On November 1, for example, video evidence emerged that showed armed gunmen apparently affiliated with the opposition carrying out a mass summary killing of at least 10 men in their custody. Our preliminary research implicates two armed opposition groups in the northern Syrian province of Idlib.
Many such abuses are war crimes. Government violations are so systematic and widespread that they constitute crimes against humanity. The government chain of command is relatively clear, but the fragmented nature of the opposition makes it hard to assign responsibility. There are dozens of armed opposition groups – army defectors, local volunteers and battle-hardened jihadis. Some fight each other. In many cases we can identify the abusers, but it is harder to identify who has the power to stop them.
The recent unification of the opposition could change that. The National Coalition of Syrian Revolutionary and Opposition Forces, formed on November 11, is respected inside Syria. The hope is that it will unite the military factions and be in a stronger position to stop abuse by individual units. And, if it doesn't, opposition leaders could be held accountable.
Except for resolutions on Kofi Annan's peace plan, the United Nations Security Council has been deadlocked on Syria. Russia and China have used their veto powers to block every resolution condemning violations. Eleven members supported a resolution threatening sanctions against Syria in August, but South Africa and Pakistan abstained.
A common refrain for not supporting such resolutions has been that they are biased against the Syrian government. But this does not apply to referring Syria to the International Criminal Court. The court would then have the jurisdiction to investigate and prosecute war crimes and crimes against humanity, whether committed by the government or the opposition. It is hard to imagine an action less biased than this. And it would send a strong signal to both sides that the international community will not let violations go unpunished.
In the face of UN inaction, Switzerland has taken the initiative of drafting a letter calling for the security council to refer Syria to the court. If sufficient countries sign, such a letter could galvanise council members to press forward with, or at least refrain from, vetoing a referral. Many countries, including permanent and nonpermanent security council members, have indicated their intention to sign; some important ones, including South Africa, have not.
Nobody claims an International Criminal Court referral will end the killing overnight. But it might make a government soldier or an opposition fighter think twice before they torture or execute a fellow human being or drop bombs on civilians. Given the gravity of the crimes, South Africa should not squander such an opportunity.
Ole Solvang is a researcher in the emergencies division at Human Rights Watch