Syria: A Potent Alternative to Military Action

President Obama has decided to take >his case for a military strike against the Assad regime to the U.S. Congress, with the aim of “firing a shot across the bow” of Syria.

As the typical Washington game of “manufacturing” consent unfolds, there has been little or no discussion in the United States of another potent action. This course of action has special appeal because it would have real and lasting consequences for the Assad family and its defenders. It would also be consequential enough to help deter future chemical weapon use.

This action is the indictment in the International Criminal Court (ICC) of Bashar Assad, his brother Maher (commander of the Republican Guard) and the identifiable senior military officers involved with Syrian chemical weapons use. The ICC is a permanent tribunal established in 2002 to prosecute individuals for genocide, crimes against humanity, as well as war crimes. It is empowered not only to convict and imprison, but also to obtain reparations from the convicted for their victims.

Four Impacts of an ICC Indictment

1.  Indictment by the ICC would mean that travel by indicted Assad family and military supporters to any signatory nations would result in arrest and trial for these crimes.

2.  Furthermore, a conviction would place at risk at least some of the vast sums of money they have accumulated in foreign bank accounts.

3.  Indictment would also close forever their exit door from their embattled country to Europe and all ICC signatory countries.

4.  This represents a real and significant consequence, no less so than a cruise missile destroying an empty presidential palace or military headquarters.

Unfortunately, China, Iraq, Israel, Libya, Qatar, the United States and Yemen all voted against the Rome Treaty which established the ICC. The United States remains among the few western nations not to participate in the ICC. To have jurisdiction over the Syrians involved in the use of chemical weapons, the U.N. Security Council would need to refer this case to the ICC.

The Swiss Solution in Syria

In January 2013, Switzerland submitted a letter to the U.N. Security Council signed by more than 50 countries. It called for referral of the Syrian situation to the ICC, for investigation of war crimes.

This was backed by the U.N.’s own Human Rights Council. However three of the Security Council’s permanent members — the United States, China and Russia — blocked the proposal.

If a Security Council referral to the ICC was again called for, concerning war crimes including chemical weapons use, the United States would be in the unusual position of deciding whether to veto such a referral in light of its opposition to the ICC, or to allow it.

Either way, taking this step is one of the few legal means available to actually enforce the international ban on the use of chemical weapons.

However the ICC prosecutor also has the discretion to bring cases before the ICC himself, under the theory of proprio motu, and has twice initiated investigations using this method.

So ICC action in response to Syrian chemical weapons atrocities is probably possible without Security Council referral — although support of this action by the United States would still carry a lot of weight.

Punishment Vs. Escalating The Violence

A stand-off military strike “just muscular enough not to be mocked,” the presumable U.S. policy goal, carries an inherent risk of escalating the crisis.

Bombing some airfields, radars and (by now empty) palaces and headquarters may likely not be muscular enough not to be mocked. It could even encourage the Assad regime, or the Iranian proxy Hezbollah, to demonstrate the extent to which they were not intimidated. This could take the form of new violence directed either at Sunni Syrians or at the U.S. ally, Israel.

From there, U.S. and even Israeli involvement can only spiral upwards.

The war crimes conviction by the ICC sent former Liberian president Charles Taylor to prison for 50 years. This sent a message regarding the potential consequences for all perpetrators of war crimes.

The indictment of Bashar and Maher Assad and their co-conspirators in crimes against humanity would send the same message, loud and clear. Unlike military strikes, it risks no “collateral damage” to innocent civilians.

Moment of truth, for the ICC and the United States

Is this not a logical first-step for the international community and, in particular, for the United States? At this point in time, when neither the Obama Administration nor the U.S. Congress can articulate the desired result from military action against the Syrian regime, shouldn’t another, equally potent response be considered?

How much longer can the United States attempt to police the world for crimes against humanity but deny the jurisdiction of the international court that dispenses justice for such crimes?