It seems like an odd question: does it matter how a government kills its own people? The answer is on the minds of many as reaction to the most recent use of chemical weapons by the Syrian government has died down and the Syrian Civil War has returned to its previous slog of conventional butchery.
To the person who dies and their families, the mode of death is probably not important, but for the international community, it can be extremely important how a government kills its own citizens. International law exists in an anarchic world. Nation states cannot be coerced into doing things that they do not wish to do. At least not legitimately under international law. This is both a powerful legal principle and a recognized norm of global governance.
But what happens when the sovereignty principle buts up against other laws and norms? Various treaties and conventions prohibit the deliberate killing of civilians in wartime, the possession of chemical weapons, the use of chemical weapons, the deliberate targeting of people based on their ethnic, religious, or cultural identity. There are also conventions that set different standards for killing people during civil wars as opposed to killing in times of peace.
This complex web of international law and the norms that support it are intended to constrain the actions of governments. The familiar problem is that of enforcement. Who enforces international laws and norms when they are violated?
The deliberate killing of civilians by a government is illegal under international law regardless of whether or not a war is going on. The incidental killing of civilians during wartime is permitted under the laws of war. It is expected that civilians will be killed in wars. The sad truth is that civilian deaths almost always outnumber military ones in any war. So long as care is taken to limit this damage, killing civilians is legally and normatively accepted in wartime.
Civil Wars like the one in Syria make drawing clear lines hard. It also raises the cost of enforcement for the international community. A state that feels its survival is at stake is more likely to turn to brutal measures, but it will also be hard to punish effectively. Syria will accept economic sanctions if that is what it takes for the government to stay in power.
The resolve of the international community to enforce international law is a key part of the calculus of political leaders. When the international community is reluctant to enforce or when it actively signals that it will not enforce, governments are free to do as they will.
The Syrian Civil War has seen horrors perpetrated by all sides in the conflict. The international community has been cataloging these horrors, but has no stomach for the kind of intervention it would take to stop the war. In time, the perpetrators of these crimes may face international justice. The International Criminal Court (ICC) exists to tackle just these kinds of circumstances. The challenge is that the ICC has struggled to address past conflicts and now faces the possibility of some members withdrawing, weakening the Court’s reach.
Whether there will be justice for the victims of war crimes in Syria will ever know justice is hard to say. International law is tricky in these cases, even when people agree that a crime has been committed. But for the purposes of determining what is and is not illegal, how you kill your people does matter. Whether the crimes are horrible enough that you will be remembered and possibly hunted years later makes a difference.
Time will tell what justice may come after the war, but for now, only the most heinous acts catch the world’s attention.