Tag Archives: impunity

UN Gaza Report Part II: Israel’s Counterinsuurgency Apologist: Colonel Richard Kemp

6 Jul

 

Retired British colonel, Richard Kemp, has been an ardent supporter of Israel’s three major military operations in Gaza conducted over the last six

years. He has collaborated on several occasions with the two notoriously pro-Israeli NGOs, UN Watch and NGO Monitor, serving on the Advisory Board of the latter and appearing as star witness under such auspices at the UN, most recently at a two-day side event at UN Headquarters in Geneva devoted to condemning the UN Commission of Inquiry Report on the Gaza War of 2014.

 

There is no doubt that Col. Kemp has the credentials to speak as a counterinsurgency specialist, having served as commander of British forces

in Afghanistan and elsewhere, where he acknowledges close cooperation with Mossad and the influence of Israeli tactics. In fairness, Kemp writes from such a militarist view with little effort to assess the relevance of international humanitarian law, treating ‘military effectiveness’ as determined by military commanders as the defining criterion of legality for a challenged battlefield practice. In his own words, “[i]t’s the dispassionate military perspective that I bring.” Of course, such an outlook ignores the relevance of international criminal law, which is to superimpose accountability as a constraining framework on this ‘military perspective.’ Actually, Kemp doesn’t so much ignore international criminal law as to (mis)interpret its rules so as to vindicate the tactics of the counterinsurgent side while condemning those of the insurgent.

 

On June 25, 2015 the New York Times published an opinion piece by Kemp assessing the UN Report. What I find scandalous and perverse on the part of this self-claiming authoritative media source, is to publish such a harsh and partisan dismissal of a prudent and overly balanced report without any kind of offsetting piece. I can only imagine the furor that would have been provoked if the NYT had published a piece by an expert in international criminal law, say William Schabas or John Dugard, calling for the indictment and prosecution of Israel’s political and military leaders on the basis of the Report. At least, if such a piece had been published alongside the Kemp article, NYT readers could have been exposed to the realities of controversy flowing from these UN allegations that Israel (and to a far lesser extent, Hamas) was guilty of war crimes.

 

Kemp begins his article with the claim that “..it pains me greatly to see words and actions from the UN that can only provoke further violence and loss of life.” As is ‘law’ imposed on the powerful and not their weaponry is responsible for violence and the loss of life in Gaza. We are not told exactly why reaches this perverse conclusion, but presumably Kemp believes that the condemnation of Israel’s use of indiscriminate and disproportionate force would embolden Hamas, and Palestinians generally, to continue to claim a right of resistance. What Kemp (and Israel) obviously seek is a circumstance in which whatever the dominant military forces do is validated by its effectiveness and what a population under domination does in opposition is condemned with the implication that resistance to Israel’s prolonged occupation is inherently unlawful.

 

Kemp’s puff piece is filled with bland endorsements of Israel’s most blatant propaganda. For instance, Kemp asserts, in complete disregard of the evidence, that Israel imposed the blockade on Gaza “only in response to attacks by Hamas.” While it is common knowledge, even in Israel, that the blockade has been maintained since 2007 as a ‘collective punishment’ imposed on the civilian population of Gaza, having little to do with security, which was mainly sustained by way of rigorous monitoring of all crossings to and from Gaza, and with Egypt’s cooperation at Rafah during the Mubarak era and since Sisi’s ascent. Kemp has nothing to say about Israel’s frequent lethal incursions into Gaza that have accompanied the occupation since it started in 1967, and he uncritically supports Israel’s distorted one-sided timeline that claims Israel only attacks in retaliation for missiles and mortar fire from Hamas, and never initiates violent interactions by on its own. Kemp also never refers to the ceasefires broken by Israel, as in the leadup to Operation Cast Lead at the end of 2008. Instead, as Kemp has written elsewhere of this earlier brutal attack on a vulnerable, cage population, “I can only say this: during Operation Cast Lead, the IDF did more to safeguard the rights of civilians in the combat zone than any other army in the history of warfare.”

 

Most disturbingly, Kemp writes in a condescending manner as follows: “The report is characterized by a lack of understanding of warfare,” as revealed by its failure to compare what Israel is doing with what the U.S. and Britain have done in Afghanistan, Iraq. In Kemp’s words, Israeli tactics are no different than those used extensively by American and British forces in similar circumstances.” What is most dangerous about this counterinsurgency worldview is its implicit reasoning that allows such conclusions to be set forth in good faith by professional soldiers. To begin with, Kemp is essentially correct that the counterinsurgency wars waged by the U.S. and Britain have relied on similar tactics, but does that make Israel’s pattern consistent with international law and morality? Most international law assessments of these uses of modern weaponry against densely populated civilian areas consider such tactics to be severe war crimes, not models to be invoked as validation.

Kemp’s state of play is revealed here: converting past crimes into authoritative precedents to justify present crimes, or to transform crimes into legitimate counterinsurgency tactics.

 

Beyond this, Israel’s tactics are worse in some instances than those of its predecessors. Whereas in Vietnam, the United States used its far less precise air power to inflict heavy casualties on the Vietnamese civilian population it refrained from attacking urban population centers as Israel did in the Gaza attack of 2014, as well as the earlier ones. Even in Falluja, the worst instance of American firepower directed at a city believed to be a center of insurgent opposition in Iraq to American occupation, the population was given ample time to vacate the city after warnings of impending attack. In contrast, except for the 800 Palestinians that held foreign passports who were allowed to leave Gaza, the remainder of the civilian population in Gaza was locked into the combat zone, losing even the desperate option of fleeing to safety by becoming a refugee. Col. Kemp, invoking his counterinsurgency experience and knowledge, never sees fit to mention such a damning ‘detail.’

Nor does he bother to point out that the whole of Gaza was a combat zone, and that civilians, including women and children, had no place of sanctuary and safety, other than to seek refuge in UN facilities and mosques, which then were turned into targets because of Israeli claims that weapons were stored in these places.

 

Parroting the worst elements of Israeli hasbara, Kemp sets forth this grotesque characterization of Hamas tactics: “Unable to inflict existential harm on Israel by military means, Hamas sought to cause large numbers of casualties among its own people in order to bring condemnation and unbearable diplomatic pressure against Israel.” To make such an extreme allegation without bothering to cite evidence is to portray Hamas as seeking the genocidal annihilation of its own people. This is an odd accusation in view of the evidence that Hamas became gained more popular support from the Gazan population after this Israeli attack than before, presumably because of its steadfastness under the most severe of pressures. Also, Kemp withholds comments on the repeated and strenuous efforts of Hamas to seek the renewal of the ceasefire prior to the initiation of the Israel onslaught in early July of 2014.

 

In effect, Kemp is appraising Israel’s behavior on the basis of the ‘new normal’ prevailing among counterinsurgency hawks that have led the West into war after war in its futile effort to defer the death of European colonialism, and its American sequel. What is done by the West is justified by military effectiveness (although without noticing that these wars have all been eventually lost), what is done by the forces of national resistance is criminalized if not demonized as ‘barbarism.’

 

 

It is not surprising that UN Watch and NGO Monitor organized an elaborate side event at the Palais des Nations in Geneva last week that featured Richard Kemp as its lead speakers, but included an array of other counterinsurgency specialists, with no attempt whatsoever to bring to bear the perspectives of international humanitarian law except in the spirit of Israeli apologetics. For description of this event held on June 29-30 see the home pages of either UN Watch or NGO Monitor. It is notable that unlike the response to the Goldstone Report in 2009 that featured denunciations of bias and personal attacks, the orchestrated reaction to COI report is more sophisticated, relying on a variety of substantive reports that set forth Israel’s claims of justification, a media blitz, along with major advocacy efforts by Israel’s well-trained NGO poodles.

 

A welcome contrasting vision, closer to law, morality, and reality is offered by Max Blumenthal in his new book, The 51 Day War: Ruin and Resistance in Gaza (2015). David Swanson, the noted anti-war activist, titles his review of Blumenthal’s book, “the 51-day Genocide” <http//davidswanson.org/node/4815> As Swanson puts it in his review of the book, “I can think of a few other words that characterized the 2014 assault on Gaza in addition to ‘war,’ among them, occupation, murder-spree, and genocide. Each serves a valuable purpose. Each is correct.”

 

Advertisements

Opposing Impunity for Geopolitical Criminality

5 Apr

 

 

Responding to intense pressure from the usual sources William Schabas, a prominent and respected expert on international criminal law, recently resigned as Chair of the UN expert commission of inquiry into war crimes allegations arising from the massive Israeli military operations in Gaza during July and August of 2014. These issues relating to international criminal accountability have also received recent prominence due to Palestine’s adherence to the Rome Treaty making it a party to the International Criminal Court, an initiative that generated an enraged punitive reaction on the part of Israel as well as an angry denunciation by Washington. On display in these instances is the struggle between extending the rule of law to international state crimes and the geopolitical resistance to such an effort whenever accountability to law is in tension with the pursuit of strategic interests.

Imposing international criminal responsibility upon political leaders and military commanders that occur in the aftermath of wars possesses a dual character from a geopolitical perspective: to vindicate major military undertakings of liberal democratic states and to ensure impunity for the leaders of these same states in the event that their behavior or that of their allies are alleged to be international crimes. These efforts at vindication are associated with strengthening the global rule of law and validating the established order, while impunity is invoked to insulate powerful individuals and their governments from criminal accountability. The resulting pattern in international life is one of double standards at the level of implementation and hypocritical rhetoric about the importance of a global rule of law based on its universal applicability.

 

Contemporary experience with these issues is grounded in the aftermath of World War II. In 1945 with great fanfare after World War II, especially at Nuremberg in the legal prosecution of surviving Nazi leaders, as well as at Toyko where a series of prominent Japanese personalities who had headed the imperial government and commanded its military forces were accused and convicted of international crimes. These sophisticated ‘show trials’ were generally endorsed in the West as a civilized alternative to the favored Soviet and British approaches, which would have been to arrange summary mass executions of all Germans deemed responsible for international crimes without making any effort to assess the gravity or accuracy of the charges directed at specific individuals. What was done at Nuremberg in 1945 was for prosecutors to prepare carefully evidence of alleged wrongdoing of each defendant under indictment as well as developing arguments about the legal relevance of the international crimes at stake while giving those accused an almost free hand to offer legal defenses and mitigating evidence as prepared by competent lawyers appointed to render them assistance.

 

In most respects, Nuremberg in particular continues to be viewed as a landmark success in the annals of the progressive development of international law. It is also significant that the outcomes of parallel Tokyo prosecutions of Japanese leaders are virtually unknown except in Japan where they are decried as ‘victors’ justice’ and throughout the world among a few specialists in international criminal law.

 

There are several reasons for the prominence of Nuremberg. First of all, the disclosures of the Holocaust at Nuremberg were so ghastly that some sort of punishment of those responsible seemed to be a moral imperative at the time.

Although the crime of genocide did not yet exist in law, the revelations of the Nuremberg proceedings documented as never before the systematic extermination of Jews and others in Europe. Beyond this, the war was widely believed to have been a just and necessary response to the menace of Naziism and Japanese imperialism, and their embrace of aggressive war. The Allied victory was viewed as decisive in overcoming the fascist challenge to liberal democracy, with the Nuremberg Judgment providing an authoritative rationale for waging a defensive war so costly in lives, devastation, and resources. Finally, the claim to be establishing a structure of legal accountability that took precedence over national law seemed integral to the postwar resolve to keep the peace in the future and deter aggression by reminding all leaders of the possibility of criminal accountability for initiating a war or abusing people under their control. The advent of nuclear weaponry reinforced the moral and political conviction that major wars must now be prevented by all available means, including this warning to leaders and military commanders that their actions could become the subject of criminal prosecution.

 

At the same time, this Nuremberg/Tokyo experiment was tainted from the outset. It was clearly victors’ justice that incorporated double standards. The evident crimes of the winners in the war were not even investigated, including the atomic bombings of two Japanese cities, which were viewed around the world as perhaps the worst single acts of wrongdoing throughout the course of the entire war, and only the Nazi death camps were in some way equivalent in relation to legality and morality. There were official statements made at Nuremberg that those who sat in judgment of the Germans would in the future be subject to similar procedures of accountability if they committed acts that seemed to be crimes under international law implying that the rule of law would replace victors’ justice. In effect, the claim made on behalf of moral credibility and political fairness was that this Nuremberg/Tokyo approach would assume the attributes of the rule of law by treating equals equally in future conflicts. Such expectations, if scrutinized, seemed to reflect the hopes of ‘liberal legalists’ in universal legal standards, but were never realistic goals given the structure and nature of world politics.

 

In effect, this Nuremberg promise could not be kept because geopolitical primacy continues to set the limits of legal accountability. Although there has existed an International Criminal Court since 2002, and ample grounds for believing that some major sovereign states have committed international crimes, there have zero prosecutions directed at dominant political actors, and not even investigations into possible criminality have been launched. Such a pattern results from a normative gap in world order that is not likely to be closed soon. It is a gap that is most visibly expressed by reference to the right of veto possessed as a matter of law by the five permanent members of the UN Security Council. This right of veto amounts to an institutional grant of exemption from the legal obligation to comply with the UN Charter on matters of peace and security. For these five states and their friends and allies, compliance is discretionary, and non-compliance is in effect ‘a right.’ In this regard, the UN Charter is itself a product of what might be called ‘geopolitical realism,’ which takes precedence over the apolitical aspirations of ‘liberal legalists.’

 

And yet, the impulse to hold accountable those who commit crimes against the peace, war crimes, and crimes against humanity remains strong among moderate democratic governments and in some sectors of global civil society. As a result there is some further development of the Nuremberg idea, although the fundamental tensions between hard power and establishing a credible rule of law with general applicability remains. During the 1990s the UN Security Council established ad hoc international tribunals to assess criminal responsibility associated with the breakup of former Yugoslavia and in relation to the genocidal massacres in Rwanda. In these North/South settings, there was more willingness to allow all sides to bring forth their arguments about the criminal behavior of their adversary since there were no allegations directed at geopolitical heavyweights. That is, the approach of liberal legalists became practical in these situations where no high profile geopolitical actor is being accused of an international crime.

 

The International Criminal Court was itself brought into being in 2002 by an unusual coalition of forces, joining governments with a great many NGOs drawn from around the world in a joint project. What came into being is an international institution with a mandate to investigate and prosecute, but lacking the participation and support of the dominant states, and operating within a framework that up to now has been deferential to the sensitivities of sovereign states in the West. Operating in such a limited way has led the ICC in its first decade to focus its attention almost entirely on African leaders, while looking the other way with respect to geopolitical actors. Liberals conceive of this as progress, doing what can be done, and beneficial to the extent that it apprehends some persons who have been responsible for atrocities and crimes against humanity. Critics of the ICC view it as another venue for the administration of ‘victors’ justice’ and an inscription of Western moral hegemony that entails a cynical expression of double standards. Both interpretations are plausible. The ICC is currently facing an identity test as to whether it will undertake investigations of alleged Israeli criminality made at the request of Palestine. Its institutional weight is being demonstrated by the degree to which the Israeli leadership reacts with fury, punitive policies, and intense anger directed at the Palestinian Authority for raising such a possibility. It should surprise few that Israel’s backlash against the ICC is supported by the United States.

 

For centuries there has been recognized the capacity of national courts to act as agents of law enforcement in relation to international wrongdoing. Such a judicial role was long exercised in Western countries in relation to international piracy, which was viewed as a crime against the whole world and hence could be prosecuted anywhere. Such an extension of international criminal law is based on ideas of ‘universal jurisdiction,’ strengthening the capacity of international society to address serious crimes of state. This kind of approach receive great attention in relation to allegations of torture made against the former Chilean dictator, Augusto Pinochet, after he was detained by Britain in response to a 1998 request for extradition by Spain where a court stood ready to prosecute on the basis of indictments already made. After a series of legal proceedings in Britain the House of Lords acting as the country’s highest judicial body decided that Pinochet should be extradited, but only for torture charges relating to a period after torture became an international crime within Britain. In theory, national courts could become much more active in relation to universal jurisdiction if so empowered by parliamentary mandate, but again doing so without challenging geopolitical red lines. When Belgian courts threatened to proceed against Donald Rumsfeld because of his alleged authorization of torture in Iraq, political pressures were mounted by Washington, including even threats to move NATO. In the end, Belgium backed down by revising its national criminal code so as to make it much more difficult to prosecute international crimes that occurred outside of Belgium and for which Belgians were not victims or perpetrators.

 

Civil society has also acted to close the normative gap created by patterns of geopolitical impunity. In the midst of the Vietnam War, motivated by a sense of moral outrage and the paralysis of official institutions when it came to challenging American behavior, Bertrand Russell organized a symbolic legal proceeding that investigated charges of criminality in 1966 and 1967. Prominent intellectuals from around the world were invited to serve as a jury of conscience, heard evidence, issuing their opinion as to law and facts at the end. Inspired by this Russell Tribunal experience, the Permanent Peoples Tribunal was established a decade later by citizens, operating out of Rome, holding sessions on issues where there existed moral outrage, legal prohibitions, and institutional paralysis, symbolically challenging geopolitical impunity. In 2005 there was organized in Istanbul by a dedicated group of female activists an independent tribunal to investigate war crimes charges against British and American political and military leaders, as well as corporate actors associated with the Iraq War. The Iraq War Tribunal relied upon a jury of conscience chaired by Arundhati Roy to pronounce upon the evidence. Of course, such a tribunal can only challenge impunity symbolically by influencing public opinion, and possibly through encouraging boycotts and other moves that delegitimize the claimants of power and possibly alter the political climate. Nevertheless, it plays a role in the legitimacy war dimensions of international conflicts, providing an alternative narrative to the discourse

disseminated by geopolitical forces and giving encouragement to civil society activism by providing a convincing rationale for concluding that contested behavior violates fundamental norms of international law and morality.

 

In summary, it is still accurate to observe that geopolitical primacy inhibits the implementation of international criminal law from the perspective of a global rule of law regime that treats equals equally. At the same time, ever since Nuremberg there have been efforts to end the impunity of those guilty of international crimes in war/peace situations and national settings of oppressive rule. These efforts have taken several main forms: (1) the establishment by the UN of ad hoc tribunals with a specific mandate as with former Yugoslavia and Rwanda; (2) the establishment of a treaty based international institution, the International Criminal Court, with limited participation and disappointing results to date; (3) reliance on universal jurisdiction to activate national courts to act as agents on behalf of international society with respect to enforcing international criminal law; (4) the formation of civil society tribunals to assess criminal responsibility of

leaders in situations of moral outrage and global settings that render unavailable either inter-governmental or governmental procedures of accountability. (1)-(3) are projects of liberal legality, while (4) draws on more progressive jurisprudential energies outside the statist paradigm.

 

In the end, there is posed a choice. One possibility is go along with the one-eyed efforts of liberal legalists, most notably mainstream NGOs such as Human Rights Watch, silently acknowledging that the rule of law cannot be expected to function in relation to many serious international crimes due to the hierarchical and hegemonic structure of international society. The other possibility is to insist there can be no international justice so long as there exists a regime of ‘geopolitical impunity.’ In both instances, the contributions of civil society tribunals are needed, both for the sake of symbolic indictment and documentation of wrongdoing, and to acknowledge civil society as the moral and legal conscience of humanity. It must be admitted that only among liberal democracies are such self-critical initiatives of civil society tolerated, although such undertakings are derided and marginalized by mainstream media as the work of a ‘kangaroo court.’ Obama’s refusal to look back at the international crimes alleged against leading members of the Bush presidency is one awkward admission of the limits on legal accountability; such reasoning if generalized would invalidate any concern with all forms of past behavior, and hence any notion of accountability for all crimes. In such a dysutopia criminal law might exist, but by habit and expectation it would never be implemented, however severe the crime and dangerous the criminal. In the world we inhabit, without kangaroo courts international criminal law would continue with its limited writ, and there would no tribunals whatsoever to assess the criminality of the most powerful political actors on the world stage that menace many vulnerable peoples in the world.

 

 

 

 

Prosecuting Syrians for War Crimes Now

5 Jun

 

 

            A major undertaking of the victorious powers in World War II was to impose individual criminal accountability upon political and military leaders for alleged crimes committed during wartime before a tribunal convened by the victors that gave those accused a fair opportunity to present a defense. This application of this idea of accountability to German and Japanese surviving leaders at trials held in Nuremberg and Tokyo was hailed at the time as a major step in the direction of a ‘just peace.’ International law was treated as binding upon sovereign states and those that represented the government, conceived to be a major step in the direction of a global rule of law. The final decisions of these tribunals also produced a narrative as to why World War II was a necessary and just war. Such an outcome was both a vindication of the victory on the battlefield and a punitive repudiation of those who fought and lost. Significantly, this criminal process was formally initiated only after the combat phase of the war had ended and Germany and Japan had surrendered.

 

            There were skeptics in 1945 that whispered ‘victors’ justice,’ and insisted that this ‘Nuremberg experience’ was a partisan exercise in truth-telling. Above the courtroom hung an invisible sign reading ‘only losers need enter here.’ The Nuremberg goddess of ‘war justice’ wore no blindfold, assessed with one eye the crimes of the losers and averted her other eye so as not to see the crimes of the winners. In the actual trials those whose criminality was being assessed were not accused of any crimes that resembled the practices of the winners, and were not allowed by the tribunal bring up in their defense any of their alleged crimes.

 

            Many wanted to overlook this flaw, and move on to create a justice system that would indeed operate on the basis of the nature of the act as criminal or not, and not make criminality depend on the identity of the actorBut moving toward the ideal of equality before the law has not been easy. It requires elevating international criminal law above the precepts of geopolitics. Yet the impulse to do so in form has surfaced strongly in the aftermath of the Cold War, but we have yet to see any corresponding substantive transformation that must occur if equals are to be treated equally in international criminal law.

 

            Against such a background, the attempts to hold individuals, whether acting on behalf of governments or insurgencies, individually accountable for war crimes is treated as a core element of global justice. Since the International Criminal Court (ICC) was established in 2002, an institutional mechanism exists on a global level by which to apply international criminal law in an objective and authoritative manner. Further there exists convincing proof that horrifying atrocities have been committed in the course of the Syrian civil war, principally by the government and armed forces of Syria, and to a far lesser extent by various factions among the fragmented opposing rebel forces. In these circumstances, it would certainly seem appropriate to charge both Syrian government officials, including military commanders, and members of the insurgent opposition, with such crimes.

 

            France presented a resolution to the UN Security Council on 22 May calling upon the ICC to investigate allegations of war crimes in Syria, and to proceed with prosecutions to the extent possible. The resolution was supported by a 13-2 vote, yet it failed to pass because the two dissenting votes were cast by Russia and China, countries enjoying a right of veto. As might be expected, there have been angry explanations of the result given by both sides. According to the Russian delegate, the French initiative was nothing more than ‘a publicity stunt’ that would hamper, or even preclude, the difficult search for a diplomatic end to the strife. The Western reaction, significantly endorsed by the UN Secretary General’s office, declared that such a use of the veto was ‘irresponsible,’ even ‘disgraceful.’ It amounted to a de facto grant of impunity to the worst perpetrators of state crime active on the planet at this time.

 

            I believe that both of these contrasting reactions are understandable, and can be given a qualified endorsement despite seeming to contradict one another. The Russian reaction reflects a view that the main motivations for such a resolution is to weaken the legitimacy of the Damascus regime in the midst of an unresolved struggle for control of the country, and in this sense is better interpreted geopolitically as an irresponsible propaganda move rather than as a genuine attempt to promote criminal justice. As well, it has been Moscow’s insistence all along that the only way to end the violence in Syria is by way of diplomatic compromise. Thus, any attempt to indict Syrian leaders as war criminals while the fighting persists weakens the already dim prospects of resolving the conflict by diplomacy. It gives Assad and other Syrian leaders, the circle of those that likely would have been indicted, strong incentives to rely on combat rather than take their chances with diplomacy.

 

            The French approach, strongly supported by the Western powers, especially the United States, focuses on the clear evidence of criminality attributable to the Damascus regime. Such behavior deserves to be formally criminalized, and the fact that the Assad regime remains in power enhances the urgency of doing so. There is no need to look beyond these facts, and taking such action may increase the pressure on the Syrian government to seek accommodation.

 

            Further along these lines, the argument that recourse to the ICC will end diplomatic efforts to end the violence is specious. Conventional diplomacy has been given many chances, and has failed. They claim that diplomacy has been repeatedly tried and failed, including reliance at the highest levels on the good offices of the UN and Arab League through the determined efforts by Special Envoys, first, Kofi Annan and the Lakhdar Brahimi. To act as if diplomacy might succeed in the future is mainly a diversionary tactic to discourage taking immediate steps that might bring the war to an end in ways that are helpful to the aspirations of the majority of Syrians. The supporters of the French resolution argue that activating the ICC will produce public indignation, swing support to the insurgent side, and produce a more politically and morally desirable end game to the conflict by discrediting the Damascus regime and empowering the opposition within Syria, the region, and the world. There are many uncertainties exposed by this debate. It is difficult to reach a clear conclusion as to which side is more persuasive, but there are a series of considerations that should be taken into account, and add weight to those who voice skepticism about the French initiative.

 

            Motivation. There are reasons to think that this effort at this time is mainly an expression of frustration and desperation, and as such a misuse of the ICC by Western powers. True, the crimes of the insurgent rebels as well as those of the Syrian government were included in the proposed resolution, but the motivation was to delegitimize the Damascus government. Yet the rationale for initiating a criminal investigation directed at the leadership of all participants in the midst of a civil war for the control of the country seems like a misdirected move that is made in the face of the failure of earlier Western efforts to intervene sufficiently on the insurgent side .to produce regime change

            Timing. To use the ICC in the midst of an ongoing civil war in Syria is to take sides, and thus interfere with an ongoing internal struggle for control of the state and society. Mentioned above, even the Allied Powers in World War II waited until the guns fell silent before initiating any criminal process. As such, acting in the present setting interferes with the right of self-determination enjoyed by the people of Syria. Yet since there has been already considerable interference through funding and material support, the preconditions for self-determination do not exist, making an end to the violence that has been so devastating for the population of the country a primary goal. This makes it seem that the most important question to ask is whether criminal indictments while the war rages is likely to hasten or delay an ending of the conflict. And since neither side has shown the ability to prevail, the Russians seem right in their insistence that despite disappointments with earlier efforts, diplomacy continues to be the only path forward, although it is admittedly narrow.

           

            Justice. Is justice served when the authority of the ICC is invoked as a political instrument to influence the outcome of a civil war? There are reasons to worry about the discrediting impact of double standards. Why was there never any initiative to pursue leaders of the United States and the United Kingdom during the course of the Iraq War, which also included many incidents that seemed to qualify as crimes against humanity? This question takes on greater weight when added to earlier criticisms of the profile of the ICC, which has pursued a variety of sub-Saharan African leaders, but few others. It is also relevant to recall that the Serbian leader, Slobodan Milosevic, was indicted in the midst of the Kosovo War in 1999 undertaken without UN authorization by NATO, again seemingly motivated by the urge to strengthen public support for the justness of a legally controversial military effort to end Serbian administration of Kosovo. Again in the NATO led military operation against the Libyan regime, the ICC issued arrest warrants for the Qaddafi leadership while NATO planes were bombing Tripoli. In effect, the allegation being made by critics of such war crimes prosecutions is that the whole undertaking has been politicized in ways that lead to a selective application of the law that seems inconsistent with claims of justice. In effect, the criticism of Nuremberg still applies—only losers and the weak are accountable. For the others, impunity.

 

            Feasibility. The unlikelihood of obtaining personal jurisdiction in relation to the principal perpetrators of war crimes in Syria, especially Bashar al-Assad and major political officials and military commanders, makes the claimed rationale for seeking indictments at this stage also suspect. Proceeding now seems to have as its main justification a means to add moral weight to the position of pro-insurgency governments that something more should be done to stop the criminality of the Assad-led government. Reinforcing this reasoning is a consensus that since military intervention is not feasible and diplomacy has failed, the only option left is to charge Syrian leaders with crimes against humanity. The ICC provides a venue to mobilize pressure for giving additional help to the rebels, and at the same time depriving the Damascus government of whatever is left of its legitimacy. The fact that the French resolution calls also for an investigation of possible crimes against humanity committed by the opposition, while not being frivolous, is nevertheless certain to receive far less attention in the event tha the UNSC had given the ICC a green light.

 

            There is a serious question as to whether it is appropriate to use the ICC to gather evidence and prepare an indictment in circumstances where prospects of prosecution are remote and an ongoing struggle for control of the Syrian state remains unresolved. Such limitations also would seem to reinforce concerns about the timing of this initiative. It makes recourse to ICC not only ineffectual as a means to pursue criminal justice, but damaging to the credibility of this fledgling international institution that was created, it should be remembered, to overcome the vagaries of geopolitics, not to serve as their instrument for engaging in maneuvers.

 

            Concluding Comment. There are two intertwined concerns: First, whether seeking criminal indictments of Syrians accused of crimes against humanity is on balance helpful or harmful in relation to the search for peace that has so far proved fruitless. This issue should be considered in relation to prospects for resolving the devastating conflict in Syria that has already lasted for more than three years.

 

            And secondly, whether such recourse to the ICC would strengthen or weaken this judicial institution, and its need to overcome the strong impression of operating on the basis of double standards in relation to criminal accountability. So far all efforts to use the ICC in response to crimes alleged against Western countries have been rebuffed, and Western leaders have enjoyed impunity and have minimized their own participation in the activities of the ICC except when it serves their interests in going after adversaries. A tiny opening is the recent indication that the ICC is formally investigating criminal charges relating to the abuse of Iraqi detainees by United Kingdom occupying forces in the years after 2003. Perhaps, the times are changing, after all!