Syrian Crimes and the Yamashita Standard

What would an indicted or accused person not do to save his own skin? Brought before a court of law for crimes against humanity or war crimes, what would a former Syrian mukhabarat officer not say if called upon to answer for his misdeeds?

The Fingernails Torn from the Children of Daraa

The first defendant to appear before the “Damascus Trials” was Atef Najib. We followed his testimony on social media: he answered the Criminal Court’s questions in a cold and detached tone, as though he had no concern for the fate of the teenagers whom he had consigned to the worst forms of torment. To be sure, he acknowledged the facts for what they were: around fifteen schoolboys who had scribbled anti-Assad slogans on the walls of their school had been detained for more than a month and subjected to severe abuse, including beatings and the tearing out of their fingernails.

That said, Atef Najib vehemently denied any direct or personal involvement in the inhumane treatment inflicted upon these young people. To extricate himself, he invoked the responsibility of other agencies charged with repression. In essence, the torture suffered by these schoolchildren was not, he claimed, the result of his own initiative but rather of a broader “chain of command.” In effect, he was saying: what could I do if that was how the Syrian security services functioned collectively and hierarchically?

Shifting Responsibility: A Recurring Defense Mechanism

Deflecting blame onto a “higher or diffuse authority,” or onto the system itself, is a classic maneuver used to exonerate oneself or dilute personal culpability. Yet international courts are well aware of this recurring defense strategy, which seeks to place responsibility on the hierarchy. Nevertheless, by invoking—rightly or wrongly—the instructions he allegedly received, Atef Najib effectively called upon the highest levels of the state, where decision-making power resided, to assume responsibility.

Ultimately, the issue will arise even more sharply when General Khardal Ayoub appears in court, given his alleged involvement in the chemical attack on Eastern Ghouta in 2013.

The Yamashita Standard

In international criminal law, command responsibility is also known as the Yamashita standard, named after the Japanese general who was prosecuted and executed for crimes committed by troops under his command during the Second World War. Military leaders have a duty to supervise and restrain their forces. This is by no means a recent concept: it was established by the Hague Conventions of 1899 and 1907 and has since been continually updated and reaffirmed.

To exculpate himself, the deposed Syrian president Bashar al-Assad cannot plausibly argue that he was unaware of a chemical weapons attack launched by subordinates, whether generals or ordinary soldiers, nor that he had issued no specific instructions to that effect. Under the aforementioned doctrine, as commander-in-chief he bears criminal responsibility whenever “he knew—or should have known—that crimes were being committed and failed to take the necessary measures to prevent them or punish those responsible.”

Edgar Morin and Repentance

Edgar Morin, the sociologist and anti-Nazi activist, has recently passed away. A Sephardic Jew, he did not advocate revenge against the “architects of the Final Solution.” His deeply humanistic outlook is revealed in a text devoted to the memory of the Holocaust, in which he wrote: “I am among those who await the repentance of the wicked. I am among those who have never confined a man who has committed a crime within the all-encompassing concept of ‘criminal.’”

Yet granting forgiveness does not mean consenting to oblivion or concealment. Justice must first be done. It would not be equitable if, in Syria, only Atef Najib and Khardal Dayoub were made to pay the price in place of fugitives sheltering in Moscow.

Transitional justice is indeed a prerequisite for national reconciliation. But there can be no true justice so long as Bashar, Maher, and the members of the Syrian high command have not appeared before courts of law—and so long as they have not stood in the dock to hear the verdict condemning them.