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Seek indictment against Assad

Published September 14. 2013 09:01AM

The Civil War in Syria is a perplexing problem for the U.S. and its allies. Hundreds of thousands of lives have been lost or displaced since the uprising began in 2011 and now the aura of chemical weapons has engulfed the international community. President Obama's own strategy regarding the Syrian conflict also has demonstrated a level of incompetence that poses a danger to U.S. national security.

Some time ago, the president "drew the line in the sand" regarding the use of chemical weapons and called for Syrian President Assad's removal. Since this deterrent effort failed, the U.S. strategy now is one of compellence - not deterrence as President Obama asserted. The president has maintained that Assad is irrational and will grow more aggressive if the international community does not respond now. Well, rationality is based on an actor's calculations of costs and benefits of acting in pursuit of his interests. Thus, Assad has been acting rationally due to the inability of the international community and his opponents to raise the stakes for him.

Compellence is more difficult to achieve because Assad risks losing face in front of the whole world, most notably his regime's supporters. Furthermore, will compellence work with the U.S. plan of limited strikes and no U.S. boots on the ground? Assad may calculate that the costs will increase beyond any possible benefit, but he also may not draw that conclusion no matter what the U.S. does. Moreover, since the use of force is not a political solution, what does the U.S. do if Assad does not blink after the initial strike? The president may not envision an escalation, but the outcome of the initial attack may require one.

It is curious that President Obama assumes that Assad will suddenly become rational and stop using his WMDs if we act. What if the president is wrong about Assad's ability to calculate correctly? Assad may conclude the U.S. is aiming to overthrow him. Even if limited strikes do not target him directly, degrading the regime's capabilities may lead Assad to conclude that his window of opportunity to survive is closing.

Libya's Muammar Qaddafi decided to disarm and look what happened to him. Here, prospect theory offers us possible insight into how Assad might react. Sometimes actors take great risks to avoid significant losses. Remember Saddam Hussein? If Assad calculates his regime's survival is at stake, then he may conclude the use of chemical weapons is necessary for his and his regime's survival.

President Obama's argument about our national interests, though, is unconvincing. He acknowledged the U.S. is not directly threatened and that Syria lacks the capability to hurt the U.S. or Israel. But the president argued in his nationally televised speech that our inaction will somehow embolden other regimes to act against our national interests. This is a glib argument. What can Iran or North Korea do that they are not already capable of doing now? While Al Qaeda types are a threat to the U.S., how we decide to act now matters little to them. They will not be willing to become our friends by attacking Assad's regime.

The diplomatic solution to this issue is also problematic. Russia and Syria may be playing a game to give Assad time to take measures to limit the ability of the U.S. to degrade the Syrian regime's capabilities. Even if the diplomatic offer is legitimate, enforcement of any agreement will be difficult. The U.S. and the rest of the international community lack the experience of dismantling a WMD program in a war-torn country. We could safeguard the weapons until a political solution is achieved, but there is no reason to believe a political solution is possible now. All sides in the conflict still are operating on the belief they can win, and our leverage over the Syrian opposition is limited.

In that case, why not ask the United Nations Security Council (UNSC) to refer members of the Assad regime to the prosecutor of the International Criminal Court (ICC)? Although Russia or China will have the opportunity to veto any UNSC referral, China is not principally opposed to international prosecutions. Plus, both countries will run unnecessary risks to their legitimacy as guardians of international peace and stability if the evidence proves the case against Assad. If the referral is blocked in the UNSC, the U.S. will have a stronger case to make before the international community and NATO for a military option.

Even if an indictment does not bring Assad to The Hague to stand trial, our government will have raised the cost of continued use of WMDs. Assad can possibly survive an indictment, as Sudan's Omar Hassan al-Bashir has done, by moderating his behavior enough to ensure the U.S. and its allies will not seek his extradition.

By following this strategy, the U.S. will gain legitimacy for upholding international law, not violating it by attacking Syria without a UNSC resolution. Obama claims to be an adherent to the Wilsonian world view, where the rule of international law applies equally to all states. If the U.S. claims it is not directly threatened, then it weakens its own case for unilateral action. Mr. President, that is the argument you used against George W. Bush.

Christopher Stevens, Ph.D., is an assistant professor of history and government in the Government, Law and National Security Program at Misericordia University. He is an expert in U.S. national security and conflict management.

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