Security personnel loyal to Syria's President Bashar al-Assad in the town of Hujaira, south of Damascus, November 20, 2013.
Alaa Al-Marjani / Courtesy Reuters

Ever since the start of the Syrian uprising three years ago, human rights groups have regularly reported how the regime of Bashar al-Assad has committed atrocities on a massive scale. Well-respected organizations such as Amnesty International and Human Rights Watch, along with the UN High Commissioner for Human Rights and the UN Human Rights Council’s Commission of Inquiry on Syria, have shown the regime to be responsible for attacks directed against civilians, torture of prisoners, summary executions, and the use of chemical weapons, among other crimes. They have also revealed that rebel forces, especially but not only those associated with the Islamic State in Iraq and Syria (ISIS), al Qaeda’s affiliate in the Levant, have followed the regime’s lead, committing their own atrocities against government sympathizers and competing rebels. Benetech, a Silicon Valley organization, prepared a detailed report last January for the UN that identified nearly 60,000 individual killings, a number that now likely exceeds 100,000.

In short, leading human rights organizations and UN experts, not to mention serious journalists, have shown that Syria’s civil war has descended into mass criminality. Only now there are photographs -- 55,000 of them, which are part of an explosive new report on the alleged torture of 11,000 detainees by the Syrian government since the start of the uprising. On January 20, a law firm in London, retained by the government of Qatar, which backs Syria’s rebels, released the report, concluding that the Syrian regime had committed torture amounting to war crimes and crimes against humanity. The report relies on the photographs and the one source who provided them, a police photographer for the regime. The source, code-named Caesar by the report’s authors, defected and was smuggled out of the country by the Syrian opposition, along with his cache of photographs of torture in Assad’s prisons. 

Anyone who has followed the situation in Syria will be prepared to accept the report’s conclusions as true. But the report’s shortcomings risk becoming the story. It was released just before much-delayed peace talks in Switzerland, suggesting that Qatar and its law firm, Carter-Ruck of London, were more interested in publicity than in accountability. Therefore, it seems unlikely that the report will help lead to what many Syrians want and believe they need (besides a peace settlement): an independent criminal inquiry that results in international prosecutions and preserves the possibility of domestic accountability when the fighting has ended and a transition is set in place.

The report should be read with skepticism, as reporter Dan Murphy clearly demonstrated in The Christian Science Monitor. It seems rushed, inconsistent, and poorly attributed. Readers are meant to trust the trio of former international prosecutors hired to meet Caesar and co-author the report: Desmond de Silva, former chief prosecutor of the special court for Sierra Leone; Geoffrey Nice, the former lead prosecutor of former Yugoslavian president Slobodan Milosevic; and David Crane, a professor at Syracuse University College of Law who indicted President Charles Taylor of Liberia at the Sierra Leone court. With such heavyweights behind it, the report has made an impression -- and it may very well be true. But its various weaknesses, especially its Qatari backing, also make it an easy target for Assad’s resourceful propaganda machine. Assad’s regime has already tried to tarnish the revelations given their associations with an enemy government that has openly funded Syrian rebels. 

The report’s rush for publicity also politicizes the issue of atrocities and accountability in Syria’s ongoing war. This is not meant to single out Qatar. In February 2011, the UN Security Council referred the situation in Libya, then in the early stages of the civil war against Libyan leader Muammar al-Qaddafi, to the International Criminal Court (ICC) for investigation and possible prosecution. After it began to support the rebels, NATO used the ICC investigation and the ICC’s later indictment of Qaddafi to provide political support for its military intervention in Libya.

Some observers might be willing to see some good faith in the Qatari government’s efforts to focus the world’s attention on torture in Syria. Qatar has entered the breach left by the UN Security Council’s inaction; with this report, it is attempting to bring council members to their senses. But it is hard to imagine that Qatar, not otherwise known for its support of the ICC (it is not even a member), ultimately cares about an international criminal process. Rather, Qatar likely sees the torture report as a way to bolster the case for the rebels and perhaps generate support for forcible action to oust Assad.

Such a flawed report could even be harmful to the humanitarian and moral causes it purports to espouse. It suggests to Syrian citizens and to other governments, such as China and Russia, a goal of partial justice, focused only on the regime. Another approach is needed. And although accountability for torture and other crimes is hardly at the top of the agenda in Montreux and Geneva this week, the United States and its allies should, at long last, direct their attention toward it.

And yet for three years, as the Assad regime repressed protests and Syria’s uprising morphed into a civil war, the United States has taken a curiously weak-kneed approach to justice and accountability in the conflict. It has provided funds to support war crimes investigations in Syria and the Syrian Justice and Accountability Centre, which aims to document crimes and preserve the possibility of justice in a transition after Assad. But when it comes to making accountability a part of the process now, the United States has done next to nothing.

Other countries have not been so hesitant. Last year, the Swiss government led a broad effort of nearly 60 countries to call on the UN Security Council to refer Syria to the ICC for investigation. Because Syria is not a party to the Rome Statute that established the ICC, a referral is the only way to bring Syria under the court’s jurisdiction. The United Kingdom and France joined that call; the United States did not. During UN Security Council negotiations over a resolution following the chemical weapons attacks in Damascus last summer, the United States evidently declined to press for anything more than an anodyne reference to accountability for those specific kinds of attacks. Any mention of broader crimes and responsibility for them was left out.

For an administration that has made atrocity prevention “a core national security interest,” the tepid U.S. position is puzzling at best. Supporting accountability and recognizing the fact of widespread atrocities by government and rebel forces does not somehow lead inexorably down the path toward military intervention. But some form of accountability, whether an ICC referral or a high-level commission of inquiry authorized by the Security Council, would provide the non-partisan means to expose credible allegations of war crimes and crimes against humanity on all sides.

Washington, it seems, has been held back by three possible concerns. First, it may see the effort to refer Syria to the ICC as quixotic, since U.S. officials believe, credibly, that China and Russia would veto such a move. They may be right, but U.S. support would send a message to Syrians that accountability, at some point, must be on the agenda. Second, U.S. officials may believe that an ICC referral would harden Assad’s attitudes toward any kind of settlement. Agreeing to give up power as part of a transition plan, the thinking goes, would be the last thing on Assad’s mind if he suspected he would end up in a prison in The Hague. But this objection can be overcome, for just as the Rome Statute gives the UN Security Council the power to refer Syria to the ICC, it also gives it the power to suspend proceedings if necessary for peace and security. Third, some believe that the United States is concerned that a Syria referral would necessarily include the Golan Heights, thus implicating Israel in an ICC investigation. But if true, careful drafting could make clear the court’s focus on the Syrian civil war, not on Syria’s longstanding conflict with Israel.

The United States should advocate a multilayered approach to Syrian accountability for the war’s many atrocities that builds on existing U.S. support for the documentation of war crimes. As a first step, the United States should propose that the UN Security Council mandate a commission of inquiry into war crimes in Syria, allowing an investigation of allegations against all parties. Such a commission would have a higher profile than the current one under the UN Human Rights Council and could be charged with identifying individuals who are suspected of being responsible for the most serious crimes.

Such an inquiry would provide an important basis for a referral of Syria to the ICC, which the United States should then support. This two-step process, similar to the one that led the Security Council to refer the situation in Darfur, Sudan, to the ICC in 2005, would make clear to all parties to the conflict, regardless of their connections to outside powers, that if they support, encourage, or commit atrocities, they will face consequences. Particularly now that ISIS and other jihadist groups are committing brutal crimes, the Russian and Syrian governments should see their own interests in a broad-based, international inquiry that could lead to criminal investigations. 

But the ICC alone is not enough. The court’s resources allow it to investigate just a fraction of those responsible for crimes and only at the most senior levels of responsibility. The ICC has a limited budget but must pursue several other active investigations or proceedings (all of them in Africa). Some experts have proposed an alternative: a hybrid approach for justice in a post-conflict Syria that would involve international and national prosecutors and judges. But Syrians themselves may want only a limited domestic criminal process, or even a noncriminal approach, such as limited amnesties, institutional reform, and truth commissions to highlight the bad actors while also encouraging reconciliation. The United States should push the parties at Geneva and beyond to include domestic accountability in negotiations over any kind of transitional process.

“Today,” the writer Susan Sontag observed, “everything exists to end in a photograph.” But the horrific photographs released this week should not be the end. Despite its shortcomings, the torture report should remind the United States that unfathomable crimes are taking place in Syria, without even the suggestion of accountability for any side in the war. It’s time to suggest otherwise.

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  • DAVID KAYE is a Professor at the University of California, Irvine, School of Law.
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