Responsibility To Object

It's time for the U.N. Security Council to do something about war crimes in Syria.

By David Kaye



In Syria, the new year begins without change. President Bashar al-Assad continues to attack Syrian citizens on a vast scale, targeting civilians and rebels indiscriminately, and making use of summary executions and torture. Meanwhile, anti-government factions commit human rights violations of their own, according to the United Nations and various human rights organizations. The U.N. High Commissioner for Human Rights recently estimated the number of dead at more than 60,000; Lakhdar Brahimi, the U.N. and Arab League peace envoy, warns that the civil war could claim another 100,000 lives in 2013.

But if the situation in Syria looks increasingly grave, one thing could and should change. The U.N. Security Council -- so far unable to agree on measures to try to end the war -- should find a way to deter war crimes and crimes against humanity by all parties to the conflict. Its current silence encourages all Syrians, especially the perpetrators of such crimes, to believe that nobody will be held accountable for these abuses. The Security Council should therefore adopt a three-pronged strategy to insert some measure of accountability and restraint into the war, even while a political settlement remains out of reach.

First, the Security Council should impose financial, travel, and diplomatic sanctions on individuals on both sides of the conflict who commit serious violations of human rights or international humanitarian law. The Security Council has established sanctions committees in conflict zones like the Democratic Republic of the Congo and Sudan to restrain those responsible for the worst abuses. In Sudan, the so-called 1591 Sanctions Committee is authorized to make sanctions determinations on the basis of information from a range of sources, including a specialized panel of experts, governments, U.N. bodies, and non-governmental organizations. A similarly modeled Syria sanctions committee would also complement the U.N.'s independent commission of inquiry on Syria by providing a more individualized and granular response to the violence.

Second, the Security Council should refer the situation in Syria to the International Criminal Court (ICC) -- as it did Sudan in 2005 and Libya in 2011. An ICC referral has long seemed out of reach because of opposition from critical Security Council members, but that may be changing. Russian officials, for instance, increasingly see Assad as a butcher and understand the risks to the thousands of Russian nationals living in Syria. Moscow, itself not hostile to the court in principle, should see that an ICC referral could restrain the rebels as well as the government.

To facilitate success, the Security Council should take two steps it failed to do in previous cases. Because a Syria investigation would likely stretch ICC resources beyond capacity, the Security Council should take a leading role in helping fund a serious, sustained process. Likewise, the Security Council should promise up front that it will stand behind the results of the ICC investigation, obligating all governments to provide the court with the necessary logistical and political support. This should not involve a commitment to use military force to make arrests, but political and logistical support, as well as a sanctions process, would put a meaningful squeeze on those alleged responsible for the worst crimes.

Third, the Security Council should support a framework to encourage Syrians from all ethnic, national, and religious backgrounds to begin discussions about long-term justice and rule of law in the country. The ICC is a blunt and limited instrument, designed to hold senior political and military leaders accountable for their actions. But many thousands more have been and are involved in the violence; they too need to be reminded of their obligations of humane behavior in war.

A Syrian national effort, with U.N. support and encouragement, could begin to map out a plan for seeking justice in the long-term. Such an effort should include discussion of criminal process at local and national levels; truth and reconciliation programs; reparations for those thousands who lost loved ones, homes, and livelihoods; and rebuilding of the institutions of law and governance. Many Syrian activists are already thinking ahead to the day when accountability is on the national agenda. They should be supported by the international community, though the process must ultimately be Syrian-led and inclusive of all sections of society.

None of these efforts is a substitute for real efforts to end the war. But they would amount to a powerful statement in favor of norms against war crimes and crimes against humanity -- warning both the regime and the opposition that they will be held accountable for their actions. Such measures would also offer a longer-term framework for restraining abuses in the future. If even at the margins, a strategy against the most serious crimes could temper abuses and possibly save lives. Failure to take action, moreover, undermines the international community's commitment to seeking justice for massive crimes and upholding the responsibility to protect.

There are some who will argue that introducing accountability weakens the prospects for a political settlement by forcing leaders to dig in their heels in commitment to violence. In some situations, the reality on the ground may indeed counsel against moves toward accountability at a given moment. But that moment has long passed in Syria, where the regime has abandoned even the pretense of restraint and elements of the armed opposition have already stumbled into the regime's sectarian trap.

Justice may seem unattainable for now as Syria spirals further out of control. But Syrians and members of the international community can still point the way to another possible future -- one where those who commit terrible crimes cannot escape some measure of justice.

-This commentary was published first in Foreign Policy on 10/01/2012
-David Kaye, a former State Department lawyer, is a professor of law at UC Irvine School of Law

As Bashar Assad Shows His Defiance, Syria Nears Its Existential Cliff

By Tony Karon


Syrians watch President Bashar Assad making a public address on the state-run Syrian TV on Jan. 6, 2013, in Damascus

If the geological metaphor fashionable in Washington these days can be applied in Damascus, then Syria is moving perilously closer toward an existential cliff. President Bashar Assad on Sunday delivered a dramatic aria of defiance from the stage of the Damascus Opera House, rallying his base for a fight to the finish against a 21-month-old rebellion he dismissed as an unholy alliance between the West and al-Qaeda. The hour-long speech offered little hope that Assad might be about to end the civil war that has killed upwards of 60,000 Syrians by heeding the rebels’ central demand: that he step down. Indeed, Assad rejected any negotiations with an opposition he branded “enemies of God and puppets of the West.” He would only negotiate, he vowed, “with the master, not the servants” — a signal, perhaps, that his real message was directed at Western and regional powers. Condensed to a tweet, such a message might read: “Aprés moi, le déluge. Accept my terms, or own the consequences of Syria’s breakup — which we all know you’re desperate to avoid.”

Assad did, of course, offer settlement terms, but those were not much different from his previous demands: rebels would cease attacks and outsider powers would stop backing them; state control over border crossings (many now in rebel hands) would be restored, and the regime would convene a “national dialogue conference” with those who reject violence in order to negotiate a new constitution and open the way for a political transition. Unsurprisingly, his terms were summarily rejected by opposition spokesmen who said the regime had offered no meaningful concessions. The U.S. State Department dismissed Assad’s proposals as “detached from reality” and as “yet another attempt to cling to power.” Until now, the opposition has insisted that negotiations are possible only when Assad agrees to go.

“That was not the speech of a man seeking a compromise,” says Syria expert Joshua Landis of the University of Oklahoma. “That was the speech of a man who believes his side can win. He offered no ray of hope that a political solution might be possible but instead sought to rally the troops and remind the West of the stakes.” With neither the opposition nor Assad willing to talk to each other, mediation efforts by U.N. envoy Lakhdar Brahimi, strongly backed by Russia, are going nowhere. “Assad’s speech also challenges the West to rethink its policy, because the war is nowhere near an end,” says Landis. “The rebels are not getting nearly the level of outside support they’d need to destroy the regime’s military. And Assad seems to be warning that Syria itself could be destroyed in the process of bringing down his regime.”

While there’s a common perception in Western capitals that the regime is on its last legs, there are plenty of signs on the ground that it remains very much intact — and very dangerous. Assad’s security forces have been forced to relinquish control of many rural areas and have even ceded the impoverished peripheries of a number of Syrian cities, but the regime has escalated its attacks on areas under rebel control in recent months, deliberately imposing a heavier toll in humanitarian suffering. And rebels in many areas appear desperately short of funds and military resources, despite promises of expanded support from outside powers.

Assad may have also been playing on the West’s ambivalence at the prospect of a rebel military victory by harping on the al-Qaeda theme. Washington last month designated Jabhat al-Nusra, an al-Qaeda-inspired militia at the forefront of rebel fighting forces, as an international terrorist organization — a move that drew howls of protest, even from the leadership of the U.S.-backed Syrian National Coalition.

Assad has survived, as the New York Times noted last Friday, because almost two years into the rebellion, “a critical bloc of Syrians remains on the fence,” skeptical of both the regime and of the rebels. Large numbers of Alawite and Christians who detest Assad and his regime remain unwilling to embrace what appears to many of them as a sectarian, Sunni Islamist rebellion. As Slobodan Milosevic had done in Yugoslavia, Assad has created a kill-or-be-killed mind-set among his core constituencies.

That’s not a reality easily altered by the best efforts of Western powers to foster reconciliation plans in distant capitals in the hope that these will convince most of the Alawite and Christian minorities — and even many urban, wealthier Sunnis — that they have nothing to fear from a rebel victory. Those closest to the action are often less convinced of the alternative represented by the armed rebels, even if they’re appalled by the regime’s brutality. Grotesque scenes of Alawite soldiers being tortured to death by rebel captors may not have gotten much international-media air play, but they’ve gone viral on YouTube among the communities that fear for their fate should Assad be toppled.

Fred C. Hof, who until last September was the U.S. State Department’s special adviser for the transition in Syria, wrote last week of the sectarian danger in Syria:

“Some regime opponents insist … that the opposition (armed and not) remains overwhelmingly committed to a Syria of citizenship, one permitting no civil distinction among Sunni, Alawite, Christian, Kurd, Ismaili, Turkman, Druze, and so forth.  One hopes they are accurate and truthful, and not merely trying to appeal to the sensibilities of Americans who perhaps do not understand how the world really works (at least in Syria). And yet how many members of Syrian minorities — fully one-third of the country’s population — accept these proffered reassurances? Probably no more than a handful do. And why should they? What would weigh heavier on the brain of a non-Sunni Arab (or a Sunni Arab committed to secular governance): the occasional word about the primacy of citizenship, or the televised chanting of hirsute warriors and the exaltation by [Jabhat al-Nusra] in reaction to the fully justified (if ill-timed) U.S. designation of the group as terrorist?

In sum, the Assad regime has hijacked the Alawite community and large components of other minorities, holding them hostage to the survival of rule by clan and clique … If in the end Syria is really akin to Lebanon in terms of the supremacy of sectarian identification, it is finished.”

That may be exactly why Assad has chosen to force what began as a peaceful protest movement for democracy onto the terrain of a sectarian civil war. This way, the stakes for millions of Syrians, and for regional stakeholders, are that much higher.

-This commentary was published in Time magazine on 06/01/2013