Syrian Torture: What the US Must Do – by David Luban
Esa Alexander/The Times/Gallo Images/Getty ImagesFree Syrian Army soldiers in a captured Syrian government prison, Darkoush, Syria, April 23, 2013
President Obama’s State of the Union address last week took an hour and five minutes, of which he devoted less than fifteen seconds to Syria:
In Syria, we’ll support the opposition that rejects the agenda of terrorist networks.…American diplomacy, backed by the threat of force, is why Syria’s chemical weapons are being eliminated, and we will continue to work with the international community to usher in the future the Syrian people deserve—a future free of dictatorship, terror, and fear.
He didn’t mention the chilling new evidence of mass murder and torture by the Assad regime—atrocities that, if the documentation is genuine, appear to have affected far more Syrians than have chemical weapons. Nor has the US press devoted much attention to these findings, though they raise complicated new questions about the Syrian conflict.
A few days before the president’s speech, a British law firm released a report
about a horrifying collection of photos smuggled out of Syria by a defector code-named “Caesar”—a police photographer tasked by the Syrian government with documenting its executions. The 55,000 images on Caesar’s flash drive show some 11,000 corpses, photographed from multiple angles and meticulously numbered. Forensics experts authenticated a sample of the photos, and examined images of one hundred fifty victims in detail. One out of six had been strangled, and many showed signs of beating or other torture. More than 60 percent were skeletally emaciated; some may have been starved to death. The one hundred fifty victims whose photos the inquiry team studied (chosen using a recognized sampling method) are enough to support a chilling conclusion: that the killers tortured or starved thousands of victims before murdering them.
Over the course of three interviews in January, “Caesar” told the inquiry team that he had worked for the Syrian military police for thirteen years as a crime-scene photographer. But for the past three years his sole task was documenting executions, “to satisfy the authorities that executions had been performed.” He worked at a military hospital where bodies were brought—to support the stories told to victims’ families that the cause of death was a heart attack or “breathing problems”—and at peak activity he photographed fifty bodies a day.
In the words of Sir Desmond de Silva, head of the inquiry team that prepared the report, the photos record “industrial-scale killing” by the Assad regime. According to The New York Times
, the US government has known about the photos since November
. In Geneva, Secretary of State John Kerry called
for a UN investigation. Yet until now, Obama has not mentioned what could be the best-documented crimes against humanity in two decades. Coming from a president who went to the brink of war over Syrian chemical weapons, and who now claims credit for forcing Assad to give up those weapons, this silence is disturbing.
The three lawyers on the inquiry team, including chairman de Silva, are distinguished international war crimes prosecutors from the tribunals for the former Yugoslavia and Sierra Leone, all with experience prosecuting heads of state. They interviewed Caesar three times in January, and found that he “was not only credible but that his account was most compelling.” (The team also included forensics experts.)
Amid a war in which every allegation has political ramifications, the report must be scrutinized carefully. The Syrian government says the photos were fabricated. That is possible, if only barely. The forensics experts have so far examined only a tenth of the 55,000 photos, and a far smaller fraction of them were analyzed to rule out digital doctoring. Furthermore, the law firm that commissioned the report works for Qatar’s government, a mainstay of support for Syrian rebel groups; and “Caesar” has been in contact with the opposition Syrian National Movement since 2011. These are all grounds for caution.
Above all, the report’s release just as the Geneva peace talks began seems like a move to weaken the Syrian government’s bargaining position. David Crane, a member of the international inquiry team convened by Qatar, denies that the decision to release the report was political. “That report is to serve the rights of the victims, but we see this as a legal, humanitarian document.…It is not political at all.”
“Not political at all” requires some unpacking. Crane, now a law professor, was the highly successful first chief prosecutor of the Special Court for Sierra Leone. Over the years he has been exceptionally candid about how much politics, diplomacy, and strategy went into capturing the warlords whom the Court put on trial. Crane has published a fascinating account of how he used the carefully timed release of information and unsealing of indictments to put pressure on Liberian president Charles Taylor—pressure that eventually drove Taylor out of the country, where he was arrested. The parallels to the Syria report seem unmistakable.
But Crane undoubtedly means it when he says the report is legal and humanitarian, not political. In Sierra Leone, he scrupulously went after all sides in the brutal civil war, and he has called for prosecuting all sides in the Syrian conflict. His tactics had one sole aim: flushing out suspects like Taylor to bring them to justice. In that sense, Crane and his fellow prosecutors never subordinated justice to politics—it was always the other way around, using politics to achieve legal justice. That, it seems to me, is the sense in which we should understand his statement about the Syria report.
Indeed, the provocative timing of the report enhances its credibility, precisely because of its political sensitivity. The three authors have put their own substantial reputations on the line, and if the photos turn out to be fake, they will be the ones most tarnished. There is absolutely no reason to doubt their integrity.
Last August, Crane, de Silva, and a panel of other international legal experts released a detailed proposal
to set up a Syrian Extraordinary Tribunal to “prosecute those most responsible for atrocity crimes committed in Syria by all sides of the conflict when the political situation permits, presumably following a change in government.” The tribunal would be a substitute for the International Criminal Court, which has no jurisdiction over non-members like Syria. Legally, only the UN Security Council can refer a non-member of the ICC to the court, and Russia would block such a move.
The atrocities committed by all sides in the increasingly violent Syrian civil war cry out for some form of international accountability. Human Rights Watch has documented
executions, kidnappings, and forced confessions of civilians by armed rebel groups as well as by government forces. The “Caesar” photos up the stakes dramatically by providing remarkably specific evidence of mass murder and torture by agents of the government. It is hard to imagine an end to the war with no tribunals or trials. It would be the first time in twenty years that a gruesome conflict that has captured so much international attention does not result in a tribunal. Presumably, the negotiators in Geneva understand that, and reaching a ceasefire will thus be all the more complicated. The first round of talks ended Friday in mutual recriminations and no visible signs of progress.
What should the United States do? Even these newly-revealed horrors are unlikely to revive the case for military intervention, and rightly so. Nobody can predict what an end to the conflict might look like; whatever form it takes, a US intervention will not bring it about—short of a vast and long-term ground campaign no one is contemplating, and even that would not produce lasting peace or even stability. And symbolic punitive strikes on Damascus would accomplish nothing but ruining whatever prospects of peace the Geneva talks hold—and possibly putting in jeopardy delicate negotiations with Iran, which has said there would have been no interim nuclear deal if the US had carried out strikes in Damascus last fall.
Yet there is much more the US can do. At the very least, the US should assist the international legal team in settling the photos’ authenticity as quickly as possible. If they are genuine, the president must speak out forcefully. Unfortunately, an apparent lesson of the chemical weapons mess is “No more red lines!” Like the Clinton administration during the Rwanda genocide, Obama may now be reticent to call crimes against humanity by their rightful name, for fear of having to do something about them. A historian once wrote that US reticence on crimes committed by foreign governments “offers sad testimony not to a broken American political system but to one that is ruthlessly effective. The system, as it stands now, is working. No US president has ever…suffered politically for his indifference.” That historian was none other than Samantha Power, currently the US Ambassador to the United Nations. She wrote these words in 2002. Today we might add: that’s still how the system works.
Asked to comment on the “Caesar” report, an unnamed US official told The Guardian
, “We condemn in the strongest terms the actions of the regime…. We have long said that those responsible for atrocities in Syria must be held accountable for their gross violations of human rights.” Those words went unreported in major US media; nor have there been calls for an American investigation into these crimes. Just as with Assad’s chemical weapons, the president himself must seize the issue.
Accountability is easier to demand than to achieve. This year is the tenth anniversary of Abu Ghraib and the revelation of the first Justice Department torture memo. The memos did their work of making torture hard to prosecute, and a decade later, the only form of accountability we have seen for US officials is book tours and talk-show appearances. Of course I am not suggesting any kind of moral equivalence between US torture and the mass atrocities in the “Caesar” photos—that would be outrageous. My point is different: we still owe a moral debt. One way to start paying it is to denounce torture whenever it occurs and do what we can to bring its perpetrators to justice. This is all the more urgent when it shows itself in such cruel plenitude.
February 3, 2014, 12:47 p.m.