Perspective — September 12, 2013, 7:51 am

On the Enemy as Criminal

Why can’t we indict Bashar al-Assad at the International Criminal Court?

International Criminal Court, The Hague. ©© M.M. R. (Flickr)

International Criminal Court, The Hague. ©© M.M. R. (Flickr)

In his address to a war-weary American public Tuesday night, President Obama sought to justify military action against the Syrian government through conventional appeals to our national interest and security. But bound up with these appeals, Obama continues to offer a loftier and more remarkable reason to bomb — as punishment for Assad’s violation of an international legal norm. And while the president also expressed hope for a diplomatic solution, his insistence that Assad’s actions constitute a breach of international law should also give us pause. If Assad is, as the president argues, guilty of crimes against humanity, how can we accept a diplomatic solution? Murderers, after all, do not typically escape prosecution by promising to behave from now on. On the other hand, should the diplomatic solution fail, is it proper to use an act of war to deliver what is, in essence, a legal punishment? Don’t we have courts for that purpose?

For all his talk about Assad’s violations of international law, Obama notably never mentioned the idea of a juridical response. The International Criminal Court, a permanent institution in the Hague meant to supplant the kind of ad-hoc tribunal used at Nuremberg to try prominent Nazis after the Second World War, has been up and running since 2002. Now with more than 120 member states, and with jurisdiction over genocide, war crimes, and crimes against humanity, the ICC would appear perfectly designed to weigh the allegations against Assad. Indeed, on Thursday the leader of the Free Syrian Army, General Salim Idris, asked for just that to happen: “We call upon the international community,” he said, “not only to withdraw the chemical weapons that were the tool of the crime, but to hold accountable those who committed the crime in front of the International Criminal Court.”

Were it only that simple. An institution born of compromise between the aspirations of jurists and the concerns of diplomats, the ICC has limited power over nations such as Syria, which has refused to join the court and so may abuse its citizens free from the nettlesome meddling of an international prosecutor. Technically, the ICC could gain jurisdiction over Assad’s crimes in the form of a referral from the United Nations Security Council, but that won’t happen, since both Russian and China enjoy veto power over any council resolution referring Assad to the ICC.

And Russian opposition is only half the story. Like Syria, the United States is not a state party to the ICC. What’s more, in 2002 Congress passed the American Service-Members’ Protection Act; known colloquially as the “Hague Invasion Act,” it authorizes the use of military force to “protect American military personnel and officials from “prosecution by an international criminal court to which the United States is not a party.” While Obama has replaced Bush’s efforts to actively undermine the ICC with a policy of cooperation, he could never push to refer a case to a court to whose jurisdiction we refuse submit and whom we reserve the right to militarily attack. Nor would the ICC provide an ideal, or even adequate, solution to the exceptionally thorny Assad problem, assuming these obstructions could be surmounted. ICC investigations move ploddingly, and pundits like to insist that international indictments make reprobate heads of state less likely to accept a negotiated settlement.

But it bears noting: in seeking to use war as a response to crime, Obama himself strays onto legally contested terrain. Here we need only to recall his vexed use of predator drones in the targeted killing of terror suspects, a deeply controversial policy that bears more than a family resemblance to the president’s argument for using force against Syria. In both cases, death from above takes the place of arrest, indictment, and trial. So while we may hope for a diplomatic solution, we should note that Obama’s forceful appeal to legal principle in his call for military action against Assad is of a piece with a larger American trend of using military might as judge, jury, and executioner.

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More from Lawrence Douglas:

From the October 2013 issue

A Kangaroo in Obama’s Court

Will the Guantánamo tribunal execute a man we tortured?

From the March 2012 issue

Ivan the Recumbent, or Demjanjuk in Munich

Enduring the “last great Nazi war-crimes trial”

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