Assad and the ICC

Um, happily, the Security Council can’t yet “indict” anyone “before the ICC”: the world we are living in is not yet quite so Orwellian. What it can do is refer the case to the Court and ask the Prosecutor to investigate. An investigation would take months, at least, even with Syrian cooperation, and would not necessarily lead to an indictment of Assad without solid evidence. Such a reference, if it happened, would anyway probably destroy what remains of the ICC’s credibility in many parts of the world. But it probably won’t, for at least two reasons:
– it would be hard to confine the investigation to just one alleged CW attack. Use of chemical weapons is not a crime as such, but the use of “gas” is given in the Statute as one example of the use of indiscriminate weapons which would naturally cause death or suffering if employed. But in practice the Court would soon wind up investigating the whole conflict, including the activities of organisations funded and trained by the West.
– so far the ICC has not involved itself in the Arab world. Given the potential for violence there, it’s probably not in the interests of the West that it should. Whilst the US would veto any attempt to refer events in Israel/Palestine to the ICC, for instance, it would have a hard job explaining what the difference was. And even in Syria, who knows how the war will proceed, and whether some figure supported and financed by the West, or by allies of the West in the Middle East, will emerge victorious, only to be accused of terrible crimes in their turn? If you’re going to argue that CW attacks are special because they are indiscriminate, then you have to explain why cluster bombs, aerial bombardments and even large-scale use of artillery against populated areas are all different, and should be ignored.
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@3 and 4
It’s perfectly reasonable to regard CW as a particularly evil weapon of war, and many people do. That said, its actual effects when used have been limited, and an unexploded chemical artillery shell, for example, is much less dangerous than a conventional high-explosive one. Nevertheless, that’s not the point here.
The point is that if you want to invoke the ICC you have to make use of its procedures and rules. As things stand (and legal experts may differ) it seems to me that you could bring a prosecution against Assad under Article 8(b) of the Statute which covers serious violations of the laws and customs of war, and includes the use of gas and similar weapons. But that article has no less than 26 separate paragraphs setting out every imaginable violation of these laws and customs, including improper use of flags and devices. Politically, it seems to me hard to argue that the ICC should investigate Assad because one part of one paragraph of one large subsection of one Article has been violated, but only for that, whatever you think of the morality of chemical weapons generally. And that they should not investigate other groups that might have violated other paragraphs of the same Article. And checking this morning I see that some legal experts aren’t even convinced that chemical weapons (as opposed to the release of poison gas) are covered by the Statute anyway.
Also, a lot of instant rewriting of history is going on here. Chemical weapons have always had a dreadful reputation with the public, but they have been extensively produced and stockpiled by states. The British retained large stocks up to the end of World War II, designed to be used in retaliation if the Germans used them first, and the US was developing new weapons up until the end of the 1980s (they are still destroying them, I think). The old Soviet Union, of course, had massive stocks. It’s only in the last twenty years, since the Chemical Weapons Convention, that “everybody” has “always” regarded chemical weapons with disgust and abhorrence. A generation ago, they were fundamental to NATO’s defensive posture. The change was essentially because the end of the Cold War meant that the need to stockpile for a major conflict had disappeared, and large states did not want their lives complicated (as in Gulf War I) by small states possessing CW.
In the end, this is about politics, not law, and I think that trying to loose the ICC upon Assad would at once destroy much of that organisations remaining credibility, and also open the door to unpredictable and probably nasty political problems later. For that reason, as I said, I think it’s unlikely in practice.
Incidentally, there is already a convention banning cluster munitions.

Sorry, but you’re being way to cavalier on point 2 of the OP – this is the real problem and cannot be dismissed with a shrug.

The US/UK has killed, tortured and maimed many, many more people in Iraq, Afghanistan and elsewhere, Israel has been flouting a gazillion of UN resolutions and nobody has ever been held accountable, so punishing Assad (and implicitly threatening Iran) is just another exercise in power politics.

Show me Bush/Blair/Obama and assorted Israeli politicians in handcuffs and the we’ll talk.

I agree that the UNSC was set up explicitly to cement the power of the powerful – it is institutionalized hypocrisy, if you will. But the same should not be true for the ICC. You might say it already works like this in practice – and you would be sadly right. But if we care at all about making the ICC anything more than a tool of the global powers, then having the UNSC refer Assad and his government – but not anyone else involved in war crimes and crimes against humanity in Syria and the Middle East more broadly – does a tremendous disservice.

Again you may well argue that an ICC as a tool of the major powers is preferable to war as the only tool of the major powers. But once this is understood as a permanent state of affairs, the court will lose all respect – except that enforced by force of arms, and we are back to square one. Meaning, Assad is referred – and will actually be prosecuted if and only if he loses the civil war, in which case the rebels will most likely want to summarily execute him themselves anyway.

I think there was a misprint in the article linked to. It says

‘How much longer can the United States attempt to police the world for crimes against humanity but deny the jurisdiction of the international court that dispenses justice for such crimes?’.

Surely this should read

‘How much longer can the United States say that it is attempting to police the world for crimes against humanity but deny the jurisdiction of the international court that dispenses justice for such crimes?’

And the answer is ‘more or less indefinitely’, I would say.

Referring US or Israeli politicians to the ICC would strengthen its credibility, but I don’t think referring Syria weakens it. Refusing to refer anyone else until Bush is in jail means the court may as well shut down. I would argue that every successful prosecution (with most countries supportive or accepting of it) the ICC does cements its status and credibility, increases the odds the currently immune countries will one day bow to its judgements, and increases the pressure on immune countries to follow the rules until then.

When we have our annual Crooked Timber argument about Israel there’s usually some guy saying that Assad got away with massacres at Hama and Israel should not be held to a higher standard. Just telling him to shut up is a sufficient counterargument, but it would be even better if we could say no actually Arab leaders get imprisoned for that stuff, so that’s exactly the standard Israel should be held to.

Which norm are you talking about here Andrew? The one (if its a norm) to enforce anti chemical weapons legislation, or the one to protect civilians during war? They’re two different things and concentrating on one will (more than likely) divert attention from the other

Absolutely Ronan, but I think they both present the same type of problem, one to which current institutions and alliances are not well suited. The challenge is to enable the recognition and enforcement of a humanitarian norm, such that in cases of violation foreign intervention would be authorized and would occur. Whether we’re talking about R2P, or anti CW, the structural problem is the same.

Humanitarian norms already exist, but no-one, especially the major states of the world, will easily agree to be enforced against. That will only happen against states that are too poor and weak to resist. I sometimes ask R2P enthusiasts to describe a sequence of events where their own country would legitimately be the target of foreign organised enforcement. I get blank looks and threats of violence.

JQ’s and David’s comments early in the thread about the chemical and poison weapons taboos in warfare are fascinating so, knowing very little about it, I decided to look into the subject and found a detailed and interesting accounting of it in Richard Price’s scholarly book here (the first 35 pages or so can be read via Look Inside): http://books.google.com/books?id=bWutpop3t4QC&pg=PR7&lpg=PP1&output=html_text

Reading about this taboo reminded me of when, as a little kid living close to the Strategic Air Command in Bellevue, Neb., in the 1970s (and believing I would surely be incinerated in an all-out nuclear war), and I heard about the neutron bomb and how the discussion of this weapon seemed to center on its particular odiousness in that it would kill people and animals impartially while leaving buildings standing. That always puzzled me.

@21: Presenting actual evidence for examination would certainly be helpful to Obama’s cause. Walter Pincus in the WaPo made many of the same points as Grayson last week. We would also have to know if this was authorized by Assad or a rogue operation, or simple screwup.

As it is, we have Senator Lindsey Graham saying that if the US doesn’t bomb Syria pronto, Iran will get a nuke. Most persuasive.

“if it could be passed by UNSC, it’s a great solution for Obama’s domestic problems.”

Is that right? I thought that anything involving the ICC was automatically off-limits for Republicans, because they don’t like the intrusion on American sovereignty that it implies.

From Wikipedia

“Three of these states—Israel, Sudan and the United States—have informed the UN Secretary General that they no longer intend to become states parties [to the ICC] and, as such, have no legal obligations arising from their former representatives’ signature of the Statute.”

I’m very much in favour of starting the ICC process and I would like to see Obama/Cameron/Hollande and others making a commitment to pursue whoever has used chemical weapons in Syria (and it is not yet 100% certain that it was Assad) and anyone who has helped them through the ICC. I would also like to see such a process opened under the Chemical Weapons’ Convention. I doubt whether it would happen because states like the USA just don’t seem to believe in these processes.

I like the idea of referral of the Syrian conflict to some sort of tribunal, but if the ICC presents difficulties because of US rejection of that court, then there’s always the option of an ad hoc tribunal, as was done for the Balkan and Rwandan conflicts.

I’m sorry: “Outlaw states?” Cool it down a degree or two, yeah? It takes a bit more than declining ICC jurisdiction to make an “outlaw.” Does not signing the Moon Treaty make us “interplanetary outlaws” as well?

so far the ICC has not involved itself in the Arab world. Given the potential for violence there, it’s probably not in the interests of the West that it should.

The ICC has confined itself to getting involved in places like Sudan, Congo, and Libya, where of course there is no potential for violence whatsoever. Interesting, too, that Libya isn’t part of the Arab world. Someone should tell the Arab League. They were probably tricked by the Libyans all speaking Arabic and calling themselves an Arab Republic, the cunning devils.

(Actually the Libyan precedent is rather hopeful ; the Gaddafis were indicted for atrocities in the 2011 conflict.)

all the important members of the UNSC (US, Russia and China) are outlaw states wrt the ICC

As I noted elsewhere, I hope we’re going to start describing Egypt, Iran, India, Pakistan, Indonesia, Turkey and Cuba as outlaw states too.

Libya was/is a member of the African Union, a major power in Africa, with a very active African policy and a long history of involvement in the Mahgreb and West Africa.

Dude, seriously, stop digging. By that argument you could say that Egypt isn’t a part of the Arab world either. (AU member, major African power, active African policy, long history of involvement in Sudan and the Horn). You just forgot the ICC had indicted the Gaddafis. So did I until I checked. It’s OK.

Referring Assad’s use of chemical weapons to the ICC is a great idea. If the ICC investigate and indict Assad and members of his regime and they use chemical weapons again, the ICC can strenuously indict him!

The great thing about ICC indictment is that it will only matter if Assad is overthrown. Continued use of chemical weapons, if it keeps him in power, renders the indictment essentially moot.

If the international community, per se and in the form of each of its members, is going to do nothing more than pursue an ICC indictment, at least don’t pretend it is anything more potent than a devastating satirical piece on the op-ed page of the Times, on which I share Isaac Davis’ skepticism.

“The stumbling block here isn’t international law, but the lack of requisite domestic will of any nation to use its military to enforce the norm.”

The assumption here is that the nations with powerful militaries will be enforcing the law against less powerful ones, while the powerful countries get off .

“As I noted elsewhere, I hope we’re going to start describing Egypt, Iran, India, Pakistan, Indonesia, Turkey and Cuba as outlaw states too.”

What’s stopping you? It shouldn’t be anything a typical Western lefty would find objectionable (taking myself as an example). For one thing, many of those countries, though of course not all, committed their war crimes with American support–som of America’s war crimes are the crimes it has helped its allies commit, though we also commit some entirely on our own.

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“But since I do not foresee the US or its allies using CW against civilians, this seems acceptable to me.”

Quiggin and Ronan answered this on its own terms. But in broader terms, if this is acceptable to you it’s because you’re apparently comfortable with a world where let powerful countries decide which sorts of cruelty get punished and which ones don’t. It’s not hard to guess what the results will be–weak enemies will be punished for their atrocities, while powerful countries and their close allies will get a pass. Chomsky used to point out that Turkey was doing the same thing to its Kurds, and with American weaponry, that the Serbs did in Kosovo. (He cited an HRW document which is still online from the mid 90’s, but I’m not going to look it up). As an argument against the Kosovo intervention this is weak, but he was right on the facts–Turkey had a powerful enabler and so could bomb Kurdish villages as much as it liked.

@39: ” The problem is that it can get out of hand as with the chemical gas attack killing 1400 people.”

For the record, that’s the approximate number put forward by the American “Government Assessment.” British and French intelligence put the numbers considerably lower. No solid evidence has been offered regarding the source of the attack, method of delivery, etc.

“Iraq was viewed by the US as a necessary evil to counter Iran, not as an ally. But, the US certainly looked the other way, for the most part, when Iraq did use CW, so what about that?”

What about that is that if you really wanted the US to send a strong signal about the use of chemical weapons. you would support putting US officials involved on trial.

There would be not stronger lesson – it would no longer be ‘if you’re weak, and we don’t like you, and you have no friends, then you’re in trouble’, it’d be DO NOT DO THIS.

Also, you write about how the politics of the ICC or international institutions make it difficult to ‘enforce norms’ (or enact policy in a meaningful way) but appear to assume that there is no politics behind the use of force, ie that there is a collection of well meaning nations who will act post haste to punish any norms violation, any where at any time.
The Syrian situation *alone* puts lie to that claim.(If you are making it) And if you give weight to ‘credibility’ arguments, then by extension you have to intervene consistently (and we know that this isn’t politically feasible)
So again, why is the military option so much better than other options (which few argue are particularly effective either)? In general, in this case, or whenever your argument is relevant

The ICC is good, because it undermines, and in exactly the right way, the obsolete Westphalian system, that has become dangerous. But it has to be universal; powerful states refusing to accept it are not just practicing hypocrisy. They are destroying it.

I’ll go ahead then, John:

http://www.theguardian.com/commentisfree/2013/sep/09/obama-rogue-state-tramples-every-law

http://www.foreignpolicy.com/articles/2013/08/25/secret_cia_files_prove_america_helped_saddam_as_he_gassed_iran

“why would putting US officials on trial signify anything meaningful to foreign officials of rogue states? ”

And why would putting officials of enemy states on trial mean anything to officials of a rogue US? So far it hasn’t, though I suspect that if officials of one of our close allies (Israel, cough, cough) faced trial it would focus their minds. What it would actually do is lead to an all-out effort to prevent any such thing from happening.

If there really were something like a morally consistent standards that applied to everyone, the advocates of intervention, including military intervention in the most extreme cases, would probably receive more support from people who don’t fall into the category of “rogue official”. But I can’t help but suspect that you oppose morally consistent standards.

Andrew may be a troll, but whether he is or isn’t, he is effectively a spokesperson for a certain POV that wants international law to be applied to people like Assad, but not people like Bush or Obama or Netanyahu.