Even critics of President Obama’s plan to punish Syria’s Bashar al-Assad for killing hundreds of Syrians with poison gas concede that his criminal conduct calls for a response. Among the suggestions: Invoke the International Criminal Court. Tom Friedman, the foreign affairs commentator for the New York Times, wrote of Assad and his collaborators, “We need to bring their names before the United Nations Security Council for condemnation. We need to haul them before the International Criminal Court.” A few days later, another Times columnist, Nicholas Kristof, also mentioned the court, but said that while invoking the court “sounds wonderful” it would complicate getting rid of Assad.
Neither columnist noted the gaping hole in the court proposal: the U.S. is no fan of the International Criminal Court. It signed the statute creating the tribunal, but subsequently backed away, notifying the U.N. secretary general that it no longer intends to become a signatory or to have legal obligations arising from its initial signing. The U.S. retreat was due to fears of lost sovereignty and to worry that we would be targets for prosecution in the new body.
That is shamefully shortsighted. The court was created to prosecute individuals for genocide, crimes against humanity, war crimes and the crime of aggression. It is tailor made to deal with such an offense as the Assad regime appears to have committed. Having made it awkward to invoke the jurisdiction of the court in a legal proceeding, the U.S. is left with threatening military action, an option that critics have been quick to point out can punish innocent bystanders but not Assad.
The U.S. unilaterally disarmed itself when it withdrew support for the International Criminal court. It needs to remedy the error. The difficulty the Obama administration is having in rounding up support for action against Assad illustrates the need to rectify this mistake. Unilateral military responses to war crimes are fraught with peril. They can lead to unexpected consequences. They can cause more problems than they solve. The public is rightfully suspicious of military steps, sold as measured and limited, but that can spin out of control into all-out war.
The option of resort to the International Criminal Court is an alternative with none of the downsides of military force. The Obama administration ought to take the need to withdraw U.S. objections to the International Criminal Court as among the lessons learned from the tangle we are in over how to respond to Assad.
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