According to the BBC, the UN bureaucrats are now trying to implicate Syrian President Assad in war crimes. According to UN Commissioner Navi Pillay "the scale of viciousness of the abuses being perpetrated by elements on both sides almost defies belief" and evidence indicated responsibility "at the highest level of government, including the head of state". Notice the nuance? Both sides have perpetrated atrocities, but the evidence only "points to the highest levels of government" and, just in case somebody had any doubts, Mrs Pillay adds "including the head of state".
One might wonder whether this accusation against Assad personally might be based on the so-called doctrine of "command responsibility" but the answer is clearly "no". After all since Mrs. Pillay referred to "evidence" and it is unlikely that she just meant by that "evidence indicating that Assad was the President of Syria". So what kind of "evidence" pointing "directly at the head of state" could she have?
Written orders by Assad to commit war crimes?
Radio intercepts of Assad ordering war crimes?
Witnesses testifying that Assad gave criminal orders?
Witnesses testifying that they saw Assad commit war crimes personally?
As soon as we think about that it becomes quite obvious that what Mrs Pillay has is nothing or, more accurately, all she has is the usual mix of rumors, assumptions, and the usual assortment of testimonies amounting to little more than simple hearsay.
Now, there is no doubt in my mind that unspeakable atrocities were, indeed, committed by both sides. This is not only normal, this is inevitable. Any civil war will inevitably result in atrocities. Since I wrote a full article on this topic (entitled "A few basic reminders about wars, civil wars and human right") I will not repeat it all here other than saying that there is no such thing as a civil war without atrocities. In fact, there is no such thing as war - civil or international - without atrocities. To deny that, or say that it is possible to have wars without atrocities, is simply not to understand the very nature of war.
I fully agree with the the words of the chief American prosecutor at Nuremberg, Robert H. Jackson, who said the the crime of aggression (to initiate a civil or international war) is the ultimate crime because "it contains within itself the accumulated evil" of all the other war crimes. I therefore conclude the party most guilty of all the crimes committed during a war is the one starting the war because wars always produce atrocities and because absent such an initiation of war no crimes would have been committed. In other words, I submit that it is logical to conclude that it is the side which triggered the civil war which is - by definition - most guilty for all the atrocities committed in the course of this war by all the parties, even the "other sides'" atrocities and war crimes.
The other point which I want to make here is this: historically, when orders have been given to commit atrocities there is very rarely any evidence of those orders coming form the top. For example, in the case of Nazi Germany, the so-called "Wannsee Conference Protocol" is open to many possible interpretations and there is really no hard evidence at all that Hitler ever gave an explicit order to commit any genocide.
[Side note: This actually makes the entire Nuremberg trial a rather bizarre event. Think about it: the Bolsheviks (especially Lenin and Trotsky) openly and officially gave orders to take hostages, execute civilians and openly defended terrorism, while the Anglos committed atrocities worldwide, invented concentration camps (Boer war), used slavery at a massive scale in the USA, "multi-genocided" an entire continent (Native Americans), used nukes on Japanese cities, deliberately firebombed German civilians, etc. and yet these powers got to judge the Nazis for their (very real) atrocities even though it was impossible to establish the personal responsibility of most Nazi dignitaries. Still, I think that Nuremberg trials was useful because it raised many important question even if the answers it gave were dubious at best]
Similarly, the recent trials of Saddam Hussein, Slobodan Milosevic, Radovan Karadzic or Nikolae Ceausescu and other "ex-allies turned villain" have always resulted in cases of obvious "victor's justice" in which politically pre-judged individuals are tried by kangaroo courts. This is not to say that the forces under the command of these men did not commit atrocities - just that there is zero real evidence that these men personally actually gave any such orders.
It is much easier to prosecute actual executioners, those who personally participated in war crimes and atrocities. But the "big guys" - top officials or heads of state - are usually removed the the actual killers by several layers of command authority. So at the very best, one can charge them with failure to protect and of criminal negligence (via the doctrine of "command responsibility").
Personally, I very much doubt that head of states actually often give any criminal orders to commit atrocities, at least since 1945. This is not just a matter of protecting themselves from future prosecutions, but also because this is bad PR and because atrocities are usually counter-productive anyway.
There are, of course, the various cases of mass atrocities in Africa, ranging from the infamous Radio des Mille Collines in Rwanda to the kind of grotesque atrocities the world witnessed in Sierra Leone, where mid to high level leaders did clearly give genocidal orders. But these are cases of basically psychopathic leaders who cannot be considered typical heads of state.
Keep in mind that the UN does not have its own intelligence service. It cannot intercept phone-calls, letters, emails or anything else. Of course, there are a number of powers (global and regional) which could share intelligence with the UN. The problem is that any government or agency with the capabilities to pass on intelligence to the UN is also - by definition - perfectly capable of severely manipulating the intelligence it shares or even of completely make up non-existing facts and stories (WMD in Iraq anybody?).
So all the UN really can get is the testimony of witnesses and "open source" public information, such as newspaper articles. Again, at the very best this can yield local anecdotes and the identities of local executioners. Not real evidence against the the big guys running the state.
So should we dismiss the UN report and just say that both sides have committed atrocities?
Because whatever atrocities the government forces have committed they are at least not proud of them, they do not present them as justice, much less so divine justice. Whereas the Wahabi liver-eaters are not only extremely proud of their atrocities, they also claim to commit them in the name of God, hence the endless streams of beheading and shooting videos on the Internet showing large crowds of people gathered together to witness "Islamic Justice" at the hands of local officials followed by execution against the backdrop of a hysterical mob screaming Allahu Akbar! Talk about "command responsibility": these executions are ordered by "Islamic" "courts" presided by "Islamic" "judges" who are all well-know, recognized state officials and not some masked death squad leaders of local commanders acting on their own initiative.
Nobody in his right mind would compare the actions of Canadian Luka Magnotta (real name:"Eric Clinton Kirk Newman") who dismembered a student with the regular chopping off limbs and heads which regularly occurs in Saudi Arabia: in the first case we are dealing with the actions of a deranged maniac while in the second case, we are dealing with the medieval barbarity of an official law system, backed by the state and presented as ordained by God. Likewise, we cannot compare the atrocities committed by the government forces and the insurgency because in the former case they are never upheld as normative while the the second case they are also presented as ordained by God.
But the UN, of course, puts the bulk of the blame on Assad, with no real evidence and against the principles basic common sense.
And yet my beef is not with the UN. Having personally worked at the UN for several years I know the system and I expect nothing else of it. The folks that really disgust me are all the academics, politicians, journalists, bloggers and self-righteous armchair strategists who first fully support a violence uprising and then express outrage when government forces commit atrocities even though supporting the former meant accepting the latter. Likewise, I despise those doubleplusgoodthinkers who always will accuse the government forces of atrocities while systematically looking away from the atrocities committed by the putative "good guys". These hypocrites are cowards who do not have the basic intellectual courage to accept the fact that there are no good guys in a civil war or, more accurately, that the ratio of good to bad guys very rapidly becomes pretty even in all parties involved as soon as a civil war starts.