Allan Massie: War crimes trials are only for the losing side

United Nations investigators have been calling for the trials of people accused of war crimes in Syria. Carla Del Ponte, who was chief prosecutor for the international criminal tribunal for the former Yugoslavia, has been particularly vociferous. She was on television on Monday night saying there is enough evidence to bring the accused to trial. “It’s really time,” she says. “We have a permanent court, the international criminal court, who would be ready to take this case.”

She is wrong. It is indeed probable that acts which might be designated war crimes have been committed in Syria, by both sides: the troops of the Assad government and the rebels. Nevertheless, she is wrong.

She is wrong, first, because the Syrian civil war is still raging. There is at present little evidence that leads one to suppose that it will end with a clear victory for either side. The aim of disinterested people of goodwill must be to try to secure a negotiated peace – some form of compromise. Talk of war crimes trials is not going to encourage Assad and the rebel leaders to come to the negotiating table. On the contrary, the threat of the international criminal court will make the leaders of both sides more obstinate. For there is one thing we know about war crimes trials: it’s the losers who are most likely to find themselves in the dock. So if president Assad is threatened with a cell in The Hague, you have given him another incentive to fight on.

For the moment, however, there is no chance that the cry for such trials will be heeded. This would require the support of all five permanent members of the UN Security Council: the US, the UK, France, Russia and China. Since Russia and China are supporting the Assad regime, which is still the legal government of Syria, while the US, Britain and France have recognised the Syrian National Coalition as the legitimate representatives of the Syrian people – a very dubious decision – there will be no such agreement.

Even if the five permanent members of the Security Council were to agree, calls for war crimes trials would still be premature. Any evidence obtained while the war lasts is likely to be partial and tainted. The UN investigators have not been able to enter Syria. Their latest report, covering the six months to mid-January, is based on 445 interviews conducted with refugees, alleged victims and witnesses. There is also, apparently, corroborative satellite images of the consequences of shelling and air strikes. Nobody will doubt that atrocities have been committed by both the government troops and the rebels, but obtaining reliable evidence while war continues and the outcome is in doubt is impossible.

Many of us are in two minds about war crimes trials because we recognise that war imposes imperatives which are not present in times of peace. War may be forced on a state or a regime; how is it supposed to respond? President Assad’s government was recognised as legitimate, even if not admirable. It was faced with an armed rebellion which it has attempted to crush. This is how governments have acted throughout history.

The UN investigators say they have evidence of murder and torture. It would be surprising if there was no such evidence. Civil society in Syria is broken. Terrible passions have been released. The death toll is now put at around 70,000 – appalling but still lower than that in the Algerian civil war of the 1990s, which provoked no foreign intervention and led to no war crimes trials, and much lower than the toll in Russia’s Chechen wars.

Bombing and shelling civilians is bad. Terror is bad. Torture is bad. We can all agree on this. We do all agree except when our interests are at stake. Then we firebomb cities, as we bombed Hamburg and Dresden, and as the Germans bombed London, Coventry and Clydebank. The only nuclear weapons that have been used in war were the atom bombs dropped on Hiroshima and Nagasaki. Were all these war crimes? Many think so. All were justified by the perpetrators. Were the Americans guilty of war crimes in Vietnam? Indubitably. How many trials were there? One: for the My Lai massacre. None for the use of napalm against civilians.

Even today, the US practises long-range murder by use of remotely controlled drones, and the British and American governments have been complicit in the use of “extraordinary rendition”, which has terrorist suspects delivered to third-party countries where they can be tortured with impunity. This is justified in the cause of national security, and nobody is going to put an American president or a British prime minister in the dock before the international criminal court in The Hague.

It is possible that eventually the Syrian civil war will lead to war crimes trials, but if it does, this will be because Syria is a comparatively unimportant country, not because worse atrocities will have been committed there than elsewhere. The liberal West will be satisfied and claim that justice has been done, and that a lesson has been delivered to dictators and tyrants everywhere. Unfortunately, the lesson learned may be a different one: simply that you must be sufficiently ruthless to stay in power. Meanwhile, talk of such trials merely makes a peaceful negotiated settlement ever less likely. Is this what we want?

Almost 100 years ago, Oliver Wendell Holmes, a justice of the American Supreme Court, said that “between two groups that want to make inconsistent kinds of world, I see no remedy except force… Every society rests on the death of men.”

As a young man, Holmes fought on the Union side in the American Civil War, in which president Lincoln suppressed what he regarded as a rebellion by the Confederate states in a manner every bit as brutal as that of president Assad in trying to suppress the Syrian rebellion. After the war, the president and vice-president of the Confederacy, Jefferson Davis and Alexander Stephens, were both imprisoned and put on trial. Victor’s justice was served.