Geoffrey Robertson: Assad should face international justice

The President bears command responsibility for the killings. He is not the 'blind ophthalmologist' carried along by events

The European Union, following the United States, this week imposed some half-hearted sanctions – travel bans, money freezes and the like – on a handful of President Assad's cronies, but not on Assad himself. This will do nothing to change his regime's policy of murdering peaceful protesters. They also imposed an arms ban, which will merely stop the protesters from defending themselves.

The use of lethal force to disperse a one-off demonstration, like Bloody Sunday, is not an international crime. But a month of Bloody Sundays, the like of which, in Syria, has produced more than 800 dead so far – is a different matter. It counts as a crime against humanity, and it is now time for the Security Council to refer President Assad and certain members of his family to the International Criminal Court.

The uprisings against the Syrian regime do not qualify for the humanitarian protections of the law of war: they do not yet amount to an international armed conflict (although Iran is alleged to be teaching them how to crush a protest movement) and have not even reached the stage at which they can be legally classified as a civil war. The government's actions do not attract the duty to intervene to stop genocide, as the Syrian Muslin Brotherhood has claimed, because they are directed against political dissidents, not opponents exterminated on account of their race or ethnicity. However, a persistent brutal crackdown on a protest movement does amount to a crime against humanity, contrary to Article 7 of the ICC Treaty, if multiple acts of murder or persecution are committed, pursuant to state policy, "as part of a widespread or systematic attack against any civilian population". The deliberate decision to use tanks, machine guns and snipers against un-armed crowds, repeatedly over seven weeks, is clear evidence of the commission of exactly such a crime.

President Bashar al-Assad bears command responsibility for these killings and his exclusion from the sanctions is ridiculous. It is no use anymore for Mr Hague to claim him as a would-be reformer boxed in by hard-liners. Nor is he "the blind ophthalmologist" (his previous profession) carried along by events. He made the decision to stop the protests by lethal force in order to protect his family's power and wealth from democratic challenge. His younger brother Maher, who commands the army's Fourth mechanical division which committed the Deraa atrocities, is another prime perpetrator together with relatives who run his brutal secret police, (the Mukhabarat) and others from his minority Alamite sect who are part of his inner circle. Even his wife, the fragrant Queens College (Harley Street) educated Asma al-Assad, deserves to be investigated as part of that circle. Credulous journalists on women's magazines have extolled her charity and compassion, but she remains in Syria, providing private aid and comfort to her brutal husband. (In international criminal law, Caesar's wife is not above suspicion).

The rules on the use of force and firearms during civil arrest were settled by the UN in 1990. Armies and police must only resort to lethal force when "absolutely necessary" in defence of themselves or others against the threat of death or serious injury. They have a duty to act proportionately to equip themselves with non-lethal incapacitating weapons like water cannon and to use these first. They must respect and preserve human life – for example by ensuring immediate medical treatment for the injured and by punishing any official guilty of arbitrary killing. "Internal political instability may not be invoked to justify any departure from these basic principles" says the UN rules and they apply "in the dispersal of assemblies that are unlawful but not violent". Even in the case of violent demonstrations, lethal force may be used only "when strictly unavoidable in order to protect life".

The blatant breach of these basic principles by the Syrian authorities has been accompanied by new forms of viciousness that require international condemnation. As in Bahrain, the arrest of doctors and nurses for performing their Hippocratic duties to attend the injured is particularly deplorable. So too is the tactic of leaving dead bodies in the street so their sight and stench will discourage others. Shooting or arresting civilians for taking picture of army brutality on cell phones or hand-held cameras – in the hope, no doubt, of providing evidence for an international court– should also be deplored. Some seven thousand citizens have already been arrested and placed in jails where torture is alleged to be routine.

The regime has banned all foreign media from the country – a tactic most recently deployed by the Sri Lankan government to ensure that there would be no impartial eyewitnesses to its massacre of Tamils. The Red Cross was allowed limited access, as it is in Syria, but only because of its iron-clad promise to keep all its observations secret – thus raising a serious question about its value in protecting civilians and prisoners.

In these circumstances, of an ongoing crime against humanity, the duty of the Security Council is to refer the situation in Syria to the ICC prosecutor as it did with Darfur, and has recently done with Libya under Resolution 1970. Sanctions will have little effect and the UN's Human Rights Council (boasting such members as North Korea, Iran, Cuba and Pakistan, as well as Russia and China) has already rejected a request by the High Commissioner for Human Rights for a full-scale international investigation. Instead, it is sending a "fact-finding" mission but nothing more, because realpolitik dictates that Assad the Syrian tyrant is safer than unpredictable developments which may follow his overthrow. It is unlikely that the "fact finders" (who will not include professional investigators or prosecutors), will find many people who will dare to tell them the true facts, for fear of joining the eight hundred dead and seven thousand already in prison.

This is a weak-willed response that betrays the UN's "responsibility to protect" doctrine. Nobody is suggesting "boots on the ground' in Damascus. At this stage, an ICC referral would mean the collection of evidence by professional investigators, whose work may well cause the ICC prosecutor to seek judicial approval for the indictment of Assad and his commanders. The very existence of an ICC inquiry would put pressure on the regime to reverse its "shoot to kill" policy and if an indictment is judicially approved this would set an important precedent for the rights of peaceful protesters, currently at risk in Yemen, Bahrain, and elsewhere. Assad may not be seated in the Hague dock any time soon, but if an indictment is in the offing, he may hesitate to add to its counts. The possibility of justice is more likely to deter a bloody tyrant than a travel ban on a few of his cronies.

Geoffrey Robertson QC is a former UN judge and author of 'Crimes Against Humanity' (Penguin)