On the occasion of the International Day of the Victims of Enforced Disappearances, David Scheffer, International Francqui Professor (Spring 2022) at KU Leuven, reviews Jeremy Sarkin’s latest book ‘The Conflict in Syria and the Failure of International Law to Protect People Globally: Mass Atrocities, Enforced Disappearances and Arbitrary Detentions‘ (Routledge).
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There is a persistent sense of failure in world affairs today. The aspirations of modernity—to make progress in the well-being of both humankind and Planet Earth—are under constant attack and point towards regression rather than progression. Climate change threatens to change everything in the decades ahead, and not for the better. The availability of clean energy sources, sufficient food and fresh water supplies, and livable habitats has become so problematic that governments and international institutions responsible for the public welfare are not offering much hope. At any moment, another viral outbreak as disruptive if not more catastrophic than COVID-19 can upend any illusions about economic recovery and prosperity across the globe. Add to these existential crises the endless challenge of highly destructive wars (Ukraine), mass atrocities, and natural calamities (often tied to climate change) and caring for the millions of victims who, as a result, are thrust upon the international community or whose very existence is unknown, and the future looks bleak. One can hope for scientific breakthroughs, political enlightenment, and economic booms to reverse this dire course of events, but honestly addressing the causes of our global predicament is essential work in the meantime.
Syrian Civil War
That is exactly what Jeremy Julian Sarkin does in his new book entitled, The Conflict in Syria and the Failure of International Law to Protect People Globally: Mass Atrocities, Enforced Disappearances and Arbitrary Detentions (Routledge, 2022). Sarkin has written a manifesto condemning the current state of international law and the failure of the post-World War II and post-Cold War systems of governance to stem the tide of atrocities generating multitudes of victims for whom tangible assistance—to enable them to survive physically or to be identified and rescued from oblivion—is pathetically scant. He zeroes in on two categories of crimes—enforced disappearances and arbitrary detentions—and one situation—the Syrian conflict since 2011—where these crimes have been dominant and barely addressed.
Sarkin, who is a professor at NOVA University of Lisbon in Portugal and a Research Fellow in the Department of Criminology at the University of the Free State Bloemfontein, South Africa, is a prolific author and highly regarded scholar among his peers. He served for six years on the United Nations Working Group on Enforced or Involuntary Disappearances and is a New York and South African lawyer. This book clearly reflects his frustration, building during at least the last two decades, about, in his view, the distorted origins and unenforceable tenets of the international legal order in the face of atrocity crimes (genocide, war crimes, crimes against humanity) and in how quite literally to pay any meaningful attention to the victims of these crimes, who number in the tens of millions. Sarkin argues for a victim-centric legal framework and a victim-centric purpose underlying U.N. reactions to atrocities and calamities imperiling the lives of civilians.
Since the beginning of the modern era of tribunal-building in the early 1990’s, there has been a very sharp focus on investigating and achieving accountability for the atrocity crimes for a relatively small number of major perpetrators, either acting in the field or as political or military leaders strategising and executing plans for atrocity crimes. This is an exercise much sought by victims who seek justice against such individuals for the horrendous crimes committed against largely civilian populations. Whenever I met with victims as the U.S. Ambassador at Large for War Crimes Issues (1997-2001) or as the U.N. Secretary-General’s Special Expert on U.N. Assistance to the Khmer Rouge Trials (2012-2018), they had one consistent demand: bring the perpetrators to justice. The victims also needed much real-time assistance, but they wanted to see justice done in a courtroom somewhere. Thus during the last three decades international, hybrid, and domestic courts have been designed to meet this fundamental demand for justice against the perpetrators of atrocity crimes. The outcry from the Ukrainian victim population (in the tens of millions) about the Russian aggression against Ukraine since 2014 and since 24 February 2022 seeks investigation and prosecution of perpetrators operating in the field and in command centers in Russia by international tribunals, foreign national courts exercising universal jurisdiction, and Ukrainian courts. So legal accountability and the building of new or access to existing courts remains a priority of the victims.
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But in Sarkin’s view, accountability for the commission of atrocity crimes should not distract from the priorities of the victims, how to minimise the violence and calamities that give rise to tens of millions of victims, and how to aid them in the aftermath of crimes. “[W]hile justice is important, there should be greater assistance to individual victims.” (229) Sarkin compares the focus on accountability to major shortcomings in meeting the full corpus of victim needs, including the needs of disappeared victims and those arbitrarily detained. Much of this centers, Sarkin argues, on the failure of outdated and Western-centric international law to focus properly on the rights of victims and the United Nations’ failure to provide protection for survivor populations.
Sarkin finds weaknesses in international human rights law (IHRL), international humanitarian law (IHL), and international criminal law: “International law, in general, is weakened—especially when it comes to dealing with conflict and human rights abuses—by issues of state consent, by a system of states ratifying treaties, by having hard and soft law rules that are often not complied with or enforced as well as many others. Also, IHL deals with civilians as a whole and does not deal with a variety of different groups of people, such as those who are the most vulnerable, as IHRL does. This is not to argue that IHRL always does that very well. In fact, there are lots of gaps and problems. Even more problematically there are very few enforcement options, and, if those mechanisms do take up such cases, they are very few and far between. There are a lot of issues that IHL does not cover or does not deal with sufficiently, such as women’s issues, for example….” (35)
Syrian Civil War
Further, the United Nations, in Sarkin’s view, “remains very weak on providing human rights protection. Where violations occur, the UN prides itself on investigating matters and making recommendations. However, most UN-sanctioned efforts of fact-finding, reporting, recommending and reproaching states where massive violations are occurring—under the auspices of various mandate holders, missions, and ad hoc mechanisms and Special Procedures—have seen noncompliance by states, including the Syrian regime….Ensuring Syria’s compliance and commitment to its international human rights obligations through soft law has achieved little to no success.” (45)
One of the major soft law initiatives has been the Responsibility to Protect (R2P) principle enshrined in the non-binding World Summit Outcome Document of the U.N. General Assembly on 24 October 2005 (G.A. Res. 60/1, pars. 138-139, U.N. Doc. A/RES/60/1 (Oct. 24, 2005). The heavily-negotiated text calls on states to protect their own populations from the atrocity crimes of genocide, crimes against humanity (including ethnic cleansing), and war crimes. It calls upon the international community, through the United Nations, to act to protect populations from atrocity crimes, including through collective action with Security Council approval under Chapter VII of the U.N. Charter if peaceful means prove inadequate and the national authorities fail to protect their own people from atrocity crimes. Sarkin condemns the rare application of the full force of R2P during more than 16 years of near-total Security Council gridlock, massive atrocities since 2005, and the principle’s narrow relevance only in the face of atrocity crimes, while it remains irrelevant in the event of aggression, massive human rights violations, and natural calamities or emergencies where the lives of countless innocent civilians are at risk. In short, “international law and the UN have not been sufficiently focused or able to provide protection to people in peril around the world.” (143)
Sarkin uses the Syrian conflict, with its enormous range and magnitude of atrocity crimes and human rights violations, particularly enforced disappearances and arbitrary detentions, as his template for analysis of systemic flaws in the international system. He published his book prior to the Russian/Ukraine war of 2022, but one can apply his analysis with equal relevance to the failure of R2P to be activated to authorise the military intervention that would have been required to confront the Russian military invasion to prevent the atrocity crimes that have dominated the aggressive action and inflicted horrendous injury, death, and destruction on the Ukrainian people and their towns and cities. The obvious reason—the certainty of a Russian veto, perhaps joined by China—exemplifies the extreme weakness of R2P as a guiding principle in world affairs.
Sarkin proposes the creation of a “new mechanism to conduct searches for disappeared and detained people in Syria and find information for their families.” (208) The mechanism could be established by the United Nations, a regional process, or by states, (211) and financed by states voluntarily with a trust fund. (213) He further describes the proposed new mechanism as having a humanitarian mandate but also a multi-faceted mandate that includes truth and accountability, with perhaps some overlap with other processes, (214) and “a process to collect and centrally collate all of the information from all organisations, the government and other sources.” (216)
Bearing in mind his criticism of R2P, Sarkin argues, “New methods need to be found to achieve interventions, maybe outside the umbrella of the UN.” (223) One method within the United Nations would be a standing intervention force of full-time U.N. employees. (224) He argues for restructuring the United Nations by eliminating the General Assembly and replacing it with a bicameral system of a legislative chamber and a chamber to create international law. More resources should be provided to U.N. human rights processes “so that they are able to act to stop the human rights problems that exist around the world. Treaty bodies and special procedures need to be far better resourced and made more independent.” (226)
These are ambitious proposals, most of which would confront political firestorms by powerful nations and a stubborn U.N. bureaucracy. But Sarkin puts his case on the table forthrightly and with significant evidence and his views are worthy of serious consideration in both the policy and academic worlds.