The case for trying Assad in international court

Updated

Syrian President Bashar al-Assad committed a war crime on Aug. 21 when he killed more than 1,400 people with chemical weapons. The U.S. government says so, Human Rights Watch says so, and later this week the United Nations will likely say so, too. So why is no one talking about prosecuting him in the International Criminal Court?

At the moment all energies are focused on a Russian proposal directing Syria to turn over its chemical weapons for destruction by the international community. But Russia has not previously been known for its diplomatic zeal, particularly under President Vladimir Putin, and already there are signs that Putin’s peace plan is mere posturing intended to delay a military strike by the U.S.

The congressional support that President Obama seeks for a military strike, meanwhile, is fairly weak. That could change if Russia turns out to have played the U.S. for a sucker (in which case Putin’s manipulations would have backfired). But any strike strong enough to affect Assad’s future behavior could help al-Qaeda-affiliated extremists who have gained an upper hand within the Syrian opposition. Just because Assad (and Sen. Ted Cruz) say so doesn’t mean it isn’t true.

For the moment, precedence must be given to any effort that might prevent Assad from using chemical weapons again. But if no such action were possible–or if it weren’t possible without giving al-Qaeda a dangerous advantage–then Assad could still be held to account for his slaughter before the ICC.

Indeed, Assad ought to face the ICC even if a negotiated settlement is arrived at or a military attack is carried out.

If a diplomatic solution were reachable and Assad could be persuaded to turn over his chemical weapons—a possibility that’s extremely hard to imagine—then the temptation might arise to forgive Assad his past sins. After all, he would have done humanity the favor not only of ridding his own regime of these weapons, but also of preventing any more extremist regime that might follow from gaining access to them. But Assad would still be responsible for those 1,400 deaths, and it would still be a moral outrage not to prosecute him for them. (Granted, ICC prosecution isn’t something to flag while wheedling an agreement out of Assad. But neither should any such deal immunize Assad from prosecution.)

If a military strike were authorized by Congress, its only justifiable purpose would be to deter future deployment of chemical weapons, not to punish Assad. The proper venue for punishing war criminals is the ICC. Any attack pursued solely to punish Assad would not be worth waging, but any attack that didn’t punish Assad would be insufficient.

Granted, bringing Assad to justice before the ICC poses certain problems. First among these is that the U.S. doesn’t recognize the ICC’s authority. President Bill Clinton signed the treaty establishing it but never submitted it to the Senate for ratification, and his successor, George W. Bush, repudiated it. That means in any ICC prosecution the U.S. would have to “lead from behind” by letting a signatory country capture Assad and bring him to the Hague in handcuffs.

Also, an ICC investigation would require a referral from the United Nations Security Council, whose five permanent members include Russia. Like the U.S., Russia is a non-signatory to the ICC; more important, it is allied with Syria. Russia already blocked one such referral earlier this year. But a U.N report confirming the Aug. 21 attack might be hard for Russia to ignore, particularly now that Assad’s regime has formally admitted that it possesses chemical weapons.

Like all international bodies, the ICC is a cumbersome institution. But international guilty verdicts have been reached in the past. The ICC last year sentenced Congolese warlord Thomas Lubanga Dyilo to 14 years in prison for forcing children under 15 to become child soldiers. A separate UN-backed tribunal sentenced Liberia’s Charles Taylor to 15 years for war crimes in Sierra Leone.

One significant complaint about prosecutions at the ICC and other international organizations has been that they target African leaders disproportionately. Kenya’s William Samoei Ruto and Joshua Arap Sang, for instance, went on trial today. Putting Assad in the dock might help bring the ICC a little diversity.

The ICC may be a clumsy tool to right grievous wrongs, but then again, so is warfare. War-fighting is fraught with unintended consequences, starting with civilian casualties. And soldiers don’t typically target the foreign heads of state most responsible for the casus belli. Indeed, a Gerald Ford-era executive order prohibits assassination of foreign leaders (though it’s been amended so many times since that today the primary obstacle may just be practical difficulty).

Crimes aren’t committed by countries. They’re committed by criminals, and criminals should be put on trial and, if found guilty, thrown in prison. Perhaps the examples of Lubanga and Taylor, as they gradually accumulate, will deter future despots from committing human rights abuses. In the meantime, why not let justice be done?

The case for trying Assad in international court

Updated