Alternatives for Syria – International Norms and Standards?

A violation of international law is not an appropriate response to a violation of international law. As an alternative to an illegal military "strike" on the country governed, at least partially, by Bashar al-Assad, it is here argued that the best thing to do, for now, about the current situation in Syria is for the International Criminal Court to issue warrants for the arrest and trial of Assad and other persons responsible for war crimes, crimes against humanity and violations of international law. These crimes would obviously include the use of poison gas against civilians but would also include the summary execution of prisoners and the deliberate targeting and/or failure to protect civilian populations.

Other international groupings such as the G20 and the UN Security Council, in addition to individual national governments, could simultaneously take steps to freeze the foreign-held assets of the individuals for whom arrest warrants have been issued.  

There are precedents for such actions. Does anyone remember Darfur?  Darfur is a region of Sudan where large scale war crimes and crimes against humanity were committed in the early years of the present century. In 2009 and 2010, warrants for the arrest and trial of the president of Sudan, Omar al-Bashir, were issued by the International Criminal Court. There is now perhaps enough evidence to do the same in the case of Bashar al-Assad, the president of Syria. Simultaneously, warrants could and should also be issued for other persons in the Syrian government chain of command – and in the chain of command of rebel forces as well, since the latter have not been "angels" in the present conflict.

Under the doctrine of "universal jurisdiction", the judicial systems of individual countries can also become involved,. An early precedent for this sort of action is provided by the arrest in 1998 by British police in London of former Chilean dictator Augusto Pinochet on the basis of a warrant issued by a Spanish court.

For those who favour a "strike" (a word used to avoid the word "war"), the mere issuing of arrest warrants against Syria's alleged war criminals may seem like rather mild punishment for the heinous types of crime being committed. One can see their point – the president of Sudan, Omar al-Bashir, for example, is still "at large".  But such punishment is perhaps not so mild as all that. If one is the leader or part of a government engaged in a dirty civil war, the exhilarating prospect of "winning" can be tarnished by the thought that, afterwards, the choice will be between either a voluntary trip to The Hague and a trial or the prospect of giving up forever the prospect of foreign travel – to attend international conferences, to speak at the United Nations, to spend vacations on the French Riviera, to seek treatment for medical problems in London – like Pinochet – or even to attend the graduation of one's children from Harvard or some other prestigious centre of learning.  No more shopping trips to Paris or Dubai.

In addition to the issuing of arrest warrants by the ICC and other courts, the Security Council of the UN and other organizations like the G20 ought to be able to bring about the freezing and confiscation of personal assets belonging to persons charged with war crimes and crimes against humanity, with a view to extinguishing the hope of living a life of luxury even after a possible fall from power, in the manner of the ex-dictator of Haiti, Jean-Claude Duvalier (Bébé Doc), who, upon being deposed, fled (with some very large sums of money) to the French Riviera. The spectre of a Bashar Al-Assad reduced to poverty and fleeing from international justice might be a more effective deterrent for would-be dictators and abusers of human rights than the news that an American missile has fallen on Damascus.

The advantage of measures like the issuing of arrest warrants and the freezing of assets is that they target precisely the guilty individuals – instead of their victims!  When the Americans intervened against Saddam Hussein in Iraq in 2003, supposedly in part to protect Iraqi citizens from their dictator, among the early victims were 500 civilians who had sought shelter in a subway station and who were killed by a high-tech bomb or missile which somehow found its way underground. This, initially, was no skin off Saddam Hussein's nose. Innocent Iraqis were being punished for the crimes of Saddam Hussein. The punishment was not "mild". It hit the victims, but not the perpetrators of the crime which had motivated the intervention. This is the universal (or almost universal?) failing of military intervention for humanitarian reasons or out of moral outrage. (After this early loss of life by 500 civilians in Iraq, by the way, things got much, much worse.)

Economic sanctions are not much better than military intervention. Economic sanctions, like military action, have the perverse effect of punishing mainly the victims, not the perpetrators, of crimes against humanity.

Another advantage of the freezing of assets and the issuing of arrest warrants against individuals accused of heinous activities is that they open up the possibility of a trial and of the careful weighing of evidence. One remembers here that the weapons of mass destruction allegedly possessed by the regime of Saddam Hussein in Iraq in 2003 turned out not to exist.  Saddam had no nuclear weapons, no nuclear weapons program, no biological weapons, no fleet of mini-drones ready to be launched against the West. In the present case of the civil war in Syria, it has been duly noted in a careful examination of the facts by Dennis Kucinich, a former U.S. presidential candidate and a former member of the U.S. House of Representatives, that currently available evidence does not rule out the ever-present possibility that Syrian rebels themselves may have been responsible for the release of poison gas, with the hope that it would be blamed on the Syrian government. There is, it would seem, a mysterious 90-minute time interval between the rocket launch which the U.S. administration identifies as the means of delivery of the chemical weapon attack on August 21 and the actual chemical weapon attack. Rockets do not take 90 minutes to fly from one part of Damascus to another. See the analysis by Jim Naurekas published on Fair.org on September 1 and referred to by Kucinich.

The use of chemical weapons is of course – need one really repeat this? – both morally unacceptable and contrary to international law – especially when non-combattant civilians are targeted (or even "collaterally damaged").  But the use of military force by one country against another country is also unacceptable and contrary to international law except in two types of case. The first of these two types of exceptional case is that of self-defence in response to an actual attack. Syria, however, has not attacked the United States or any of its allies.  So a "strike" under current conditions does not fall under this type of exception. The second of these exceptional cases is a use of force which has been sanctioned and approved by the Security Council of the United Nations. There has, however, as yet, been no approval by the Security Council of military action against Syria. The absence of a consensus among members of the Security Council is perhaps regrettable.  But resolving the impasse is the job of diplomats and world leaders – and one wishes they would get back to work. The Soviet Union and China have been blamed for preventing agreement on measures to be taken – but it can hardly be in the interest of either of these two countries, Russia in particular, for the current conflict (with its attendant chaos, extreme human suffering and displacement of populations) to continue. Some common basis for agreement ought to be able to be found, even if it is not 100% to the satisfaction of each and every party. The agreement reached will have to be more advantageous to each party than the absence of an agreement. But the question arises once again: Do we really have to be repeating things like this?

On the matter of the requisite level of proof and certainty required before an intervention can be justified, recent history has seen all too many cases of Secretaries of State, Ministers of this and that, Presidents and Prime Ministers, telling us with all the sincerity and emotion they can muster, about how absolutely certain they are that the enemy has done something heinous and threatening and that the only solution is a military one. One recalls Colin Powell's famous speech before the Security Council in February 2003.

That charges of serious violations of international law and human rights be submitted to rigorous examination is particularly important in the present case, given the views expressed by Russian officials concerning the flimsiness of what is advanced by the Americans and the French as "proof" of the Assad's government's authorship of gas attacks on August 21 (and other dates).  The Russians do not exclude the idea that the rebels may be somehow behind the release of toxic chemical substances. It was certainly not in the interest of Assad to appear to have used such weapons.  (Assad of course himself denies having done so.) On August 21, in The Independent, Patrick Cockburn invited us to "remember there's a propaganda war on"! The suggestion here is that there is nothing like a good trial before the International Criminal Court to clear up the matter.

In less recent history, we recall how, in August 1939, men dressed in Polish military uniforms attacked a radio station near Gleiwitz, Germany. This was a fake attack, however, staged by members of the German SS, disguised as members of the Polish military, with a view to providing "practical proof" for the media as justification for the coming German attack on Danzig and the German invasion of Poland proper. (See William Shirer's account of this in The Nightmare Years or  "The Invasion of Poland Timeline" by John Radzilowski  (accessed 2013-09-08).) One also remembers the accusations and counter-accusations over the bombing and strafing of the civilian population of Gernika on April 26, 1937.  Having the relevant documents and testimony examined by a court – with the possibility of counter-interrogation by lawyers on both sides – is conducive to the emergence of truth.

In the present case – involving allegations of the use of chemical weapons in Syria – reluctance to submit the matter to a court, reluctance even to wait for the publication of the report of U.N. inspectors sent to investigate the case, can only reinforce the suspicion on the part of many that the intervenors do not really want the truth to be known.

As a further argument against military intervention in the absence of a mandate given by the U.N. Security Council, it should be mentioned that if the U.S. acts on its conviction that Assad's forces were responsible for the chemical attacks by bombing resources belonging to the Syrian government, nothing would seem to prevent the Russian government from acting on its own, contrary, suspicion that it was actually the rebels who deliberately released the gas. If the Americans can "punish" the Assad regime, why can't the Russians "punish" the rebels by bombing them? What then? (Just a thought. The Russians have a naval base on the Syrian coast and Russian naval ships are not far away.)

In conclusion, and by way of summing up, the following points can be emphasized: Respect for international law and human rights can only be fostered by respect for international law.  In the absence of a Security Council mandate, a military "strike" on Syria would be illegal and – from the humanitarian point of view – would probably increase the level of suffering rather than reduce it. It could also have unpredictable results, given the geopolitical situation. The best way to express extreme international disapproval of the abuses and atrocities committed in Syria is for the International Criminal Court and other competent courts to issue internationally valid warrants for the arrest and trial of the suspected perpetrators. In addition, measures should be taken by all national governments, the Security Council, the G20 and other international organizations to freeze the assets of the accused until they can be brought to trial.  As a final, perhaps discouraging note, however, let us remind ourselves that neither a "strike" on Syria (which we hope will not happen) nor the issuance of arrest warrants for war criminals and the freezing of their assets (which we advocate) will solve the basic problem posed by the continuance of the very nasty, large-scale and unacceptable levels of violence, disorder and suffering in Syria, to which an end must be sought. This is not a time for world leaders to be sulking and not talking to each other.

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