Nuhanovic Foundation

Reparations Database

B. Van Schaack; Mapping War Crimes In Syria, International Law Studies, US Naval War College





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This article begins with the classification of the Syrian conflict(s) and highlights the necessity to establish the temporal and geographical applicability of IHL.  It characterises the conflict(s) ‘presumptively – but not definitively’ as a NIAC(s). Consequently accountability will mostly rely upon customary international law (CIL), since most of the IHL treaties only apply to IAC, Common article 3 does not include a list of prohibitions as crimes per se, and Syria has not ratified the Additional Protocol II.

The author enunciates the existing accountability mechanisms and their limits. After mentioning a referral to the ICC and trials in third states domestic jurisdictions, the creation of an ad hoc tribunal, premised on CIL, is affirmed as the best tailored option to prosecute the long list of war crimes. Indeed to support the establishment of such tribunal, the article focuses on certain under theorized and under prosecuted war crimes. It first addresses the deliberate, indiscriminate, and disproportionate attacks on civilians. Then it gives an elaborate analysis of various unconventional and improvised weapons and weapon systems including barrel bombs, cluster munitions, incendiary weapons, poison and poisoned weapons and finally chemical weapons. Lastly it successively deals with siege warfare, starvation of civilians, barring humanitarian access to civilians and targeting energy accountability. Thus an ICC referral would not allow to prosecute many of the war crimes committed, since the ‘ICC Statute – as a treaty- has frozen IHL in time in a way that does  not, and will not, reflect international law’s inexorable normative development’.

The author recognises that criminal accountability could still be pursued as many violations may constitute crimes against humanity. Nevertheless she stresses the centrality of the law governing war crimes to fully redress all of the sufferings, to reach the broadest range of perpetrators and to normatively develop the law of war crimes.

This article ends emphasizing the necessity for the international community to accept the institution of an ad hoc tribunal dedicated to Syria.

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