Syria chemical weapons attack: How could accountability be delivered?

When United Nations Secretary-General Ban Ki-moon this week described the Aug. 21 sarin nerve gas attack in Syria as a “war crime,” it was an unambiguous call for prosecution of a universally recognized violation of international law.

“The international community has a responsibility to hold the perpetrators accountable and to ensure that chemical weapons never reemerge as an instrument of warfare,” Mr. Ban said.

But clarity on the politically fraught issue of prosecuting the perpetrators of the deadly chemical weapons attack ended there. Asked at a press conference Monday how that accountability should be delivered, Ban said, “I do not have a clear answer at this time.”

The UN weapons inspection team’s report issued this week on the August attack does not fix blame for the incident. But most security experts and many Security Council members – with the glaring exception of Russia – say the evidence in the report points unequivocally to the Syrian government and President Bashar al-Assad.

Still, the reality is that the perpetrators of the attack – which Ban described as the “most significant use of chemical weapons against civilians since Saddam Hussein used them in Halabja in 1988” – aren’t likely to face justice anytime soon, if ever.

As many human rights advocates and international justice experts see it, the priorities of the key international players in the Syrian conflict – and the central role that Mr. Assad will need to play in addressing his country’s crisis – are conspiring to leave the attack’s perpetrators unpunished.

“The bigger question here is stopping the Syrian civil war, and the reality is that Assad is the strongest player in the conflict,” says Michael Doyle, a professor of US foreign and security policy at Columbia University in New York and a former assistant secretary-general at the UN.

“It’s hard to imagine any follow-on regime that doesn’t include him or some of his followers,” he says, adding, “So to the question, ‘How will he or they be held accountable?,’ the answer may very well be that they won’t be held accountable.”

The most obvious way to hold the perpetrators “accountable,” as Ban insists the international community must, would be for the Security Council to refer the Syria case to the International Criminal Court (ICC) in The Hague.

But that seems very unlikely. Russia, Assad’s chief international backer, would use its veto to prevent it. And in any case, the United States is not pressing for it.

Even though President Obama has insisted for weeks that the chemical weapons attack not go unpunished, his administration is now focused on the US-Russia plan agreed to last weekend to rid Syria of its chemical weapons stockpiles.

One consequence of the plan is that the US – which for two years has been calling for Assad’s departure from power – now needs his regime in power and cooperating with international chemical weapons experts if the plan has any chance of working.

As a result of the US-Russia plan, “Assad has gone from an almost-friendless pariah to a partner of the United States and Russia in resolving a problem created by his criminal behavior, only months after his government was condemned by over 100 states in the UN General Assembly,” says James Jeffrey, a former US ambassador to Iraq and Turkey and a visiting fellow in national security strategies at the Washington Institute for Near East Policy.

Not only does the US have no interest in seeing the Syria case referred to the ICC while the chemical weapons plan is being set in motion, but Assad’s leverage with the international community will only increase during implementation of the plan, experts like Mr. Jeffrey say.

“As the focus turns to carrying out the agreement, [Assad’s] ability to blackmail the international community will soar,” he says. “In particular, the need for his cooperation and control over [chemical weapons] sites and routes thereto in the face of rebel resistance may well tilt international sympathy toward him.”

Dozens of countries, including a number of permanent and nonpermanent members of the 15-seat Security Council, support referral of the Syria case to the ICC.

Earlier this week, the European Union’s chief foreign policy official, Catherine Ashton, said the EU “stands united” in condemning a “horrific attack which constitutes a violation of international law, a war crime, and a crime against humanity.” She added that the perpetrators of the attacks “must be held accountable.”

Short of an ICC referral, an individual country could decide to try the perpetrators under what is known as “universal jurisdiction,” in which any country can prosecute internationally recognized war crimes or what are recognized to be universal crimes such as torture and genocide.

The Spanish judge Baltasar Garzón gained international prominence in 1998 when he issued an international arrest warrant for former Chilean President Augusto Pinochet. But the Spanish jurist’s action was based on the alleged torture and deaths of Spanish citizens living in Chile under the Pinochet regime.

Judge Garzón never succeeded in trying Mr. Pinochet, but his high-profile efforts shed light on the principle of universal jurisdiction.

Another option would be for either Syrians or members of the international community to await the conclusion of the Syrian civil war and then press for creation of a special Syria tribunal to take up the conflict’s war crimes.

Beyond that, human rights groups could establish a nonjuridical prosecution, says Columbia’s Dr. Doyle, which would be “informational” in nature and would be a kind of last resort for ensuring that the Syrian “war crimes” did not enjoy full impunity.

But Doyle says he is “lowering expectations” that Assad or anyone in his regime will ever “be held accountable” for the chemical weapons attacks.

“I’m not ruling out Assad being indicted, at some point and by someone or some institution,” he says. “But I’m not expecting to see him show up in The Hague to face justice.”