Monday, October 20, 2014
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Leverage Justice for Peace in Syria

The Syrian government’s new-found willingness to participate “in principle” in an international conference on the Syrian conflict hosted by Russia and the United States may result in everyone showing up for the talks. But don’t bet the farm on it.

Tough obstacles remain, including preconditions that both sides will insist upon before they walk through the conference room doors in Geneva. For example, the fate of President Bashar al-Assad and his lieutenants, the combat situation, and the status of arms shipments to either government or rebel forces will loom heavily over any final terms of reference for starting the peace talks.

Leverage to stop the carnage in Syria has been lacking in over two years of futile diplomacy with the Bashar al-Assad regime. But there is one tactic that both Russia and the United States can use in the UN Security Council to facilitate the talks.

The Russians have long resisted strong Security Council action on Syria. But Moscow might see the advantage to be gained by approving a Council resolution that refers the Syrian situation to the International Criminal Court, albeit conditionally.

By anyone’s calculations, an estimated death toll of 80,000 Syrians combined with massive urban destruction satisfies the court’s gravity test. Because Syria does not participate in the court, a Security Council referral is the only way for the court to investigate and prosecute the atrocity crimes that have devastated Syrian society.

A referral to the International Criminal Court also could be used to dig President Barack Obama out of his quandary over the “red line” on use of chemical weapons and at the same time promote Russia’s interest in deflecting an all-out American intervention and holding the opposition to account for any possible use of captured chemical weapons.

Last August Obama described a red line where “seeing a whole bunch of weapons moving around or being utilized” would change his “calculus.” But he has balked at direct military intervention despite reports of chemical weapons use in the Syrian conflict.

No one knows, with certainty, how to eliminate the threat of chemical weapons that present a targeting nightmare and invite the risk of someone (deranged or otherwise) unleashing such weapons on the populace with devastating consequences. Anything short of total success with a military option could backfire on Obama and the moderate opposition in Syria and could lead to American deaths.

China, the other permanent veto-wielding member of the Security Council long resistant to strong Council action, should share with Russia an interest in neutralizing the threat of chemical weapons in Syria, including their possible use by opposition forces or foreign terrorists.

It is a rare event, but a confluence of interests about Syria—to convene the peace conference and prevent the use of chemical weapons—can capture the will of all 15 Security Council members.

The Security Council should adopt a one-purpose resolution, namely to refer the situation in Syria to the International Criminal Court for investigation and prosecution of atrocity crimes, but at this stage only if the court’s jurisdiction is activated by any of three triggers:

  • First, if the Independent International Commission of Inquiry on the Syrian Arab Republic determines in its forthcoming report (or any subsequent one) that evidence points towards use of chemical weapons by either side in the civil war, then the Syrian situation automatically would be referred to the International Criminal Court for investigation only on that issue. Obama can point to this referral as concrete action in response to the use of chemical weapons and leave open his options for further action if more chemical weapons are unleashed.
  • Second, if either the Assad regime or the opposition ultimately refuses to participate in the peace talks, then the International Criminal Court would be seized with the entire Syrian situation. Assad and his colleagues forever more would be at risk of arrest and trial. Rebel leaders implicated in atrocity crimes also would be investigated and possibly prosecuted. This should address Russia’s presumed interest in balance.
  • Third, if the peace talks collapse without a political settlement, then the Security Council’s referral to the court would be automatically triggered. The prospect of judicial intervention should spur the parties to enter the negotiations and reach a settlement.

The Security Council resolution, however, must require that the United Nations pay the cost of such judicial work, as envisaged by the treaty creating the International Criminal Court. Otherwise, the court has no realistic budgetary means to cover its expenses. Congress should embrace this necessity when approving American assessments to the United Nations.

Peace and justice can co-exist in the realm of realpolitik leverage. The hour has arrived to leverage the International Criminal Court so as to negotiate a way out of the Syrian debacle and help prevent the use of chemical weapons.

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