Considering an Amnesty for al #Assad #stratfor
This week has seen a sharp increase in diplomatic activity surrounding the fate of Syrian President Bashar al Assad as the United States and Russia attempt to work out a transition that avoids a complete collapse of the Syrian state. The question of amnesty still looms, however, and the inability of any one stakeholder to guarantee al Assad and his inner circle amnesty undermines the likelihood of a deal sticking, much less guaranteeing, a stable transition.
Syrian Deputy Foreign Minister Faisal Muqdad and his assistant flew to Moscow on Thursday and will be joined Friday by U.N. and Arab League Special Envoy for Syria Lakhdar Brahimi. Brahimi, who reportedly met with al Assad on Monday, has been conducting a negotiation primarily with the United States, Russia and Syria over a power transition in Damascus.
Various proposals have been tossed around in this negotiation over how to ease the al Assads out of the political picture without creating an even more destabilizing power vacuum that could allow civil war to fester. The rumored Brahimi proposal entails the formation of a transitional government that allows for representation on both sides of the conflict, as well as a plan to allow al Assad to serve out his term through 2014 before stepping down for good.
The viability of this plan is highly questionable. The very orderly and prolonged timeline for political change belies the deep-rooted sectarian grievances driving the conflict. Al Assad will be concerned first and foremost about immunity for himself and his family and then for the protection of his clan and the broader Alawite sect. The concept of immunity in international law can be quite the fickle subject, however.
Syria has signed but not ratified the International Criminal Court’s Rome Statute, which governs the court’s jurisdiction and prosecution of cases. This puts al Assad in murky legal waters. At this point, even the shabbiest attorney could make the case that high-level members of the regime have committed war crimes worthy of being tried in the court. But a case may only be heard by The Hague when those crimes were committed in a state that recognizes the Rome Statute, by a national of a recognizing state, or when referred to the court by a U.N. Security Council vote.
In the first case, the al Assad government is obviously not going to refer itself to the court. A newly recognized government in Syria, still rabidly anti-al Assad and seeking revenge, could choose to ratify the statute, but Article 11 of the Rome Statute denies the court from investigating crimes that took place prior to ratification. This does not rule out potential loopholes that could be pursued to investigate crimes retroactively on an ad hoc basis. Finally, the U.N. Security Council could refer a case to the court, but that would require the approval or at least abstention of all five members. Russia is likely to withhold its vote as leverage in this negotiation as it tries to preserve at least some of its influence in a post-al Assad Syria and bargain with the United States on other issues.
The bottom line is that the accommodation of amnesty is not customary law in the international court system. And it is far from clear that al Assad will be setting a new precedent for amnesty amid this fog of legalese. The human rights argument that referring al Assad and his inner circle to The Hague will prevent further atrocities must stand up against the equally if not more formidable argument that trying to send al Assad to The Hague will protract the conflict and cost more lives in the end given the sectarian grievances in Syria.
The jurisdiction of the court over an amnesty deal for al Assad can be debated at the highest levels of government, in the Harvard Law Review and the like, but in the end it may not even matter very much. Al Assad might lack the power to negotiate a peaceful transition, but he and the Alawite forces that back him will have the power to wage war. The thousands of Alawites who have fled to Tartus on the coast for safety in the event of Sunni rule, the Sunni Islamists along the Syria-Lebanon border plotting a confrontation with Hezbollah and the Kurds in the northeast clashing with Sunnis and looking to declare autonomy are perhaps the truest indicators of what a diplomatic negotiation over a post-al Assad Syria is worth