A Legal Route to Indicting Assad?
October 28, 2012
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Eight months ago, Secretary of State Hillary Clinton insinuated that Bashar al-Assad is a war criminal; however, the US was reluctant to indict him, preferring to keep Assad’s exit route open as a mean to peace. But, as I said, that was eight months ago and this is now. Tens of thousands of Syrians have been killed in the conflict so far and the great powers remain in a diplomatic stalemate, with the US and the Gulf States backing the Syrian opposition, and Russia, China, and Iran backing or at least obstructing efforts to take action against the current regime. Indicting Assad has been dismissed as impossible by some because of Russia’s and China’s power to veto a Security Council referral to the ICC – a necessary proceeding considering the fact that Syria is not a State Party to the Rome Statute. But unlike Libya, Syria is a signatory to the Statute, which carries with it an obligation, as outlined in the Vienna Convention of the Law of Treaties (Article 18), “to refrain from acts which would defeat the object and purpose of a treaty.” Despite the fact that such a legal case would likely be destroyed in the political maelstrom that would follow and may even damage “the developing bond between the Court and UN Security Council as co-defenders of justice and peace” if it survived the onslaught, it does point to the fact that the veto power of two great powers does not necessarily need to make impunity an unalterable fact of life in the case of Syria.
If the legal route doesn’t seem tenable, there is more pressure to be put on China by the Gulf States on whom it is dependent for energy. Without China, Russia, now standing alone, might yield. You could also play diplomatic football with Russia and grant it leadership over a Security Council measure to indict Assad. Perhaps good press and widespread international recognition would prove convincing enough. It may be a historically unprecedented move, but going with the legal option I proposed, if all else fails and if it really is possible, would at the very least draw more attention to Russia’s and China’s obstinance and place even more pressure on them. In the meantime, immobility is not an option for those who do not wish to see the cause of international justice and the credibility of its institutions undermined.