When the Empire Struck Back

Exactly one year ago, I was in Doha to speak at the Al Jazeera Forum, where a remarkable group of Arab politicians, intellectuals and activists had assembled to talk about the seemingly unstoppable momentum of the changes sweeping the region. Moncef Marzouki, then a human rights dissident and now President of Tunisia, told me about his hopes for crafting a genuinely democratic constitution -- hopes which al-Nahda leader Rached Ghannouchi assured me he shared. Tareq el-Bishri gave a long speech about how Egypt's 1952 revolution gave way to despotism and military rule; the youth activists in the audience could hardly mask their boredom with the old man, but perhaps should have listened more carefully. The Libyan revolutionaries at the conference were treated like rock stars, as were the youth activists from Tunisia, Egypt and other Arab countries. The mood was celebratory and electric, though tinged by anxiety over the atrocities in Libya and reports of Qaddafi's forces moving towards Benghazi.

But in retrospect, the week of March 12 marked the precise turning point away from the "New Hope" of those dizzying Tahrir days towards the grimmer, darker political struggles to come. I never made my scheduled trip from Doha to Manama. That week, the Empire struck back:

-Saudi Arabia helped ruin Bahrain. The GCC intervention to crush the Bahraini protest movement terminated U.S.-backed efforts by the more moderate elements within the Bahraini regime and opposition to find a political solution. Instead, the Bahraini regime and its Saudi backers launched a scorched-earth campaign against the opposition, with a massive and unjustifiable campaign of arrests, torture, repression, abuse and arbitrary dismissals which have been fully documented in the report of the Bahrain Independent Committee of Inquiry (pdf). The crackdown succeeded in the short term, clearing the streets and cementing the regime's hold on power, but that momentary advantage came at the cost of a generation's worth of lost legitimacy and challenges to come. It also badly hurt American credibility, as Arabs across the region pointedly noted the public silence of the United States on the crackdown in a Gulf ally.

The crackdown in Bahrain also introduced the virus of sectarianism, which had to that point been virtually non-existent in the Arab uprisings, at home and regionally. The Bahraini regime and the Saudi media tarred the opposition as Iranian-backed provocateurs, emphasizing their Shi'a identity through relentless propaganda and denying to them the identity of democracy and human rights campaigners which they had to that point successfully claimed. The ability of this regime-led sectarian frame to take hold in certain quarters, both inside the region and abroad, represents one of the true tragedies of the entire Arab uprising.

-King Abdullah bought off the home front. The "day of rage" called for March 11 in Saudi Arabia failed spectacularly. The Saudi regime then moved aggressively to shore up its own domestic standing. King Abdullah went on Saudi TV to announce a massive new public spending campaign, which amounted to "a total estimated volume of $130 billion... larger than the total annual government budget was as recently as 2007." The regime also worked through powerful Islamist networks to guarantee that they would not join in any protest movement. This not only consolidated the Saudi home front, at least for the time being, but also offered a model for other Gulf states to follow.

-The Libyan intervention. With Qaddafi's forces closing in Benghazi and the Arab League calling for international action, the United Nations approved a no-fly zone for Libya and NATO began its military intervention. This intervention clearly remains highly controversial and its ultimate success in creating a democratic, stable and unified Libya remains in doubt. The intervention clearly fit within the overarching narrative of the Arab uprisings and played an important role in keeping the hope for change alive. I remain quite convinced that the intervention was the right thing to do, that it saved many lives and helped to usher in a profound change for the better in Libya.

But at the same time, the shift from popular, peaceful mobilizations from below to an international military intervention inescapably shifted expectations about the nature of the uprisings. Al-Jazeera's screens which had for months been filled with powerful images of protestors chanting slogans were now dominated by battle scenes and war coverage. Even though the Libya intervention came against a murderous regime, it did contribute to the shift towards this darker second chapter.

- Yemen jumped the tracks. That same week, snipers opened fire on protestors in Yemen's Sana'a University. That horrific moment of violence triggered a wave of official defections and a split in the military. While some hoped that this would lead to the quick fall of the President Ali Abdullah Saleh's regime, instead it led to a long stalemate. The incredibly resilient and creative Yemeni protest movement found itself trapped between the competing centers of military power, and increasingly shut out of political dialogues which focused upon the traditional opposition parties. Whether or not the GCC transition plan which has finally removed Saleh from the Presidency succeeds in moving Yemen forward, the long months of stalemate and the horrible images of violence and human tragedy in Yemen further blunted regional momentum.

- Egypt's referendum. Also in that same week, Egyptians voted overwhelmingly in favor of a constitutional referendum which charted the path for a problematic, military-led transition. The high turnout and the strong support for the constitutional referendum delivered the first major setback to Egyptian activists, many of whom had campaigned against the referendum but now found their mobilization efforts swamped by the electoral process. The vote emboldened the Supreme Council of the Armed Forces, which now claimed a popular mandate for their transition timeline. The vote foreshadowed the clashes to come over the summer between protestors and the regime, as well as the results of this winter's Parliamentary elections.

- Syrian protests. As if all of this was not enough, the same week saw the first significant popular demonstrations break out in Syria. The heavy handed response by Syrian security forces set in motion the spiral of repression and mobilation which has brought the country to civil war and unspeakable violence. Syrian protestors and the regime alike may have been influenced by the intervention in Libya, with activists hoping to attract a similar intervention and the regime determined to prevent such an escalation from beginning. Saudi and Qatari efforts to drive Arab and international action against the Syrian regime, whether out of concern for the killing or hostility to Iran, have been a defining feature of the following year.

That's quite a week. In retrospect, it appears clear that the dramatic, nearly simultaneous events in Saudi Arabia, Bahrain, Syria, Libya, Egypt and Yemen during a single week exactly one year ago ushered in a qualitatively new phase in the Arab uprisings. It's difficult today to even remember the dizzying excitment of those first few months, when everything seemed possible and the entire Arab world seemed bound together in a single narrative of inevitable change. The escalating violence, the grim determination of regimes to hold power, the fragmentation of the regional agenda, the stalled transitions, the rise of Islamists, the nasty sectarianism -- all of this has led many observers and analysts to turn away from their early enthusiasm.

But that's premature. We are still in the early stages of a profound structural transformation in the Arab world, and there's no going back to the old status quo. The Arab uprisings are far from over, no matter how much the Arab regimes would like them to be. Don't forget: Darth Vader might have seemed in control during The Empire Strikes Back but we all know what happened in The Return of the Jedi.

In the meantime, buy my book!

Marc Lynch

Can the ICC take on Syria?

Last week, CNAS released my report "Pressure Not War," which attempted to lay out a path forward on Syria which could accelerate a political transition without a military intervention.  It's generated a great response, and a lot of hopefully productive debate.

I was surprised that the most interesting and heated arguments focused upon my recommendation to take top Syrian regime officials to the International Criminal Court if they do not immediately move towards a ceasefire and political transition. This was only one of a number of layered, interlocking proposals designed to offer a non-military alternative to protect Syrian civilians and accelerate progress towards a durable political transition. Even if it didn't materialize, the rest of the arguments about the limits of military options and the ways to advance a political solution would still apply.   So I wasn't expecting that one point to draw so much attention.

But I'm glad that it did, since I would like to see international justice at the center of the debate.  Despite all the obvious obstacles, I don't agree that the ICC and the instruments of international justice can not be brought into play against Bashar al-Assad and the top officials of the Syrian regime.  I see a real possibility that Syria could be referred if it is made a top diplomatic priority, and mounting such a diplomatic campaign would be useful even if the effort failed.  But there is a serious and ongoing discussion about whether using the ICC as a instrument of pressure is desirable, even if possible -- for Syria, or for building global norms against impunity for atrocities.

The most common objection to the ICC recommendation was that a referral was impossible without UN Security Council agreement which would not be forthcoming.  The argument is straightforward.  Syria is not a state party to the ICC.  The Court therefore has no jurisdication to indict its citizens without referral from the Security Council.  Russian and Chinese support for Damascus means that the Security Council will not authorize such a referral.  The ICC, therefore, can not play a role and an ultimatum would be an empty bluff. I was aware of all this when I wrote the report, obviously, so why did I nevertheless call for referrring Syrian officials to the ICC?  

First, there actually is a legal argument for involving the ICC even if the Security Council stays blocked, which rests on the fact that Syria, unlike Libya, is a signatory to the Treaty of Rome even if it has not acceded to the Court.  Its 2000 signature does create some obligations, as a colleague of mine explains:

"the Vienna Convention on the Law of Treaties (VCLT) governs the obligations of states that have signed but not ratified a treaty. Article 18 says they must "refrain from acts which would defeat the object and purpose of a treaty" (unless they have signaled their intent not to ratify it).  That would seem to be the legal obligation on Syria at this point."

Another international lawyer friend of mine proposes a second path (*):

"if the Syrian National Council were recognized as the legitimate representative of Syria, then this could support an article 12(3) filing by the SNC to the ICC to accept jurisdiction for the conflict here--they can do this without formal ratification of the Rome Statute (and the fact that Syria did sign the treaty could help give this some legal heft), and it would then allow an initiation of an investigation without the SC."

But both paths, while plausible, are less promising than it initially appears.  In such a highly charged, contenti0us case it seems unlikely that this legal gambit would survive the political firestorm to follow.   Even if it worked against Syria, it would probably have the longer-term result of undermining the legitimacy and the international acceptance of the ICC.  For reasons I elaborate upon below, I would oppose going this route if it had the effect of undermining the evolving legal international order dealing with atrocities and impunity. 

My thinking on the viability of the ICC rested more on political than legal logic.  Put simply, the Russian and Chinese veto is not simply an unalterable fact of nature which must be accepted.  An impressive consensus has been built at the international level condemning the Syrian regime's abuses, including a 137-22 General Assembly Vote, an even more sweeping vote at the UN Human Rights Council, and a unanimous statement (not resolution) from the UN Security Council.  The UN's Human Rights Council recently released a damning, detailed report on the atrocities in Syria, and High Commissioner Navi Pillay has called for referral to the ICC.  Even the Security Council recently issued a unanimous, albeit nonbinding, statement demanding that Syria allow its humanitarian representative "free and unfettered access" to investigate the deteriorating situation. In short, there is very high-level, intense and growing attention both publicly and inside international institutions to Syrian human rights abuses and atrocities which most agree meet the criteria which would merit investigation.    

The Russian and Chinese vetoes at the Security Council which stand in the way are not necessarily insurmountable. As the Financial Times pointed out recently, China has reversed its objection to ICC referrals twice:  in 2005 allowing the referral of Sudan over Darfur, and in 2011 allowing the referral of Libya. China may well again reverse course and accept an ICC referral, especially if lobbied heavily by the Gulf states on which it depends for energy and if this were seen as the price of blocking an international mandate for military intervention. Without Chinese cover, Russia might find it difficult to stand alone in the way... and might find its diplomatic efforts better focused elsewhere.

Will this be easy?  Of course not.  But thus far, as I pointed out in the report, the US and its allies have not yet even attempted to pursue this route because they preferred to keep open Assad's exit option.  As Hilary Clinton testified last week, Assad may fit the definition of a war criminal but "such a step often makes it difficult for a leader to step down."  But the time for this logic is rapidly passing, since Assad has shown no interest in such a deal while the atrocities mount. Ad hoc measures which are useful tactically but undermine the strategic goal of constructing robust norms against regime violence should be avoided unless there is a clear and overwhelming case that it is necessary to end violence and achieve a transition. 

At any rate, there is no way to know what is possible without trying.  Pushing for this would be productive even if it isn't immediately accomplished.  At a minimum, pressure at the UN in this direction would keep Syrian regime atrocities at the center of international attention and would put the onus for inaction squarely on the small and dwindling number of states standing in the way.  And are we to believe that somehow getting UN authorization for an ICC referral is more difficult than getting authorization for military action?

A different line of argument last week made a compelling and thoughtful case that the push for indictments in Syria would harm the cause of international justice by instrumentalizing the Court as a political pawn of the Security Council or the United States.  Generically, the ICC must remain insulated from great power politics in order to establish its independence and integrity, by this argument. If it takes its lead from the political preferences of the United States or even the Security Council, it would lose the judicial autonomy essential for developing the rule of law. More specifically, Alana Tiemessen argues, the ICC must avoid having its indictments turn into bargaining chips if it hopes to remain credible.

I take these arguments very seriously.  I believe that building legitimate international norms against impunity for atrocities should be at the center of U.S. and international strategy not just for Syria but across the Middle East and broader world politics. This is why I opposed the immunity deal granted to Yemeni President Ali Abdullah Saleh and supported the intervention in Libya.  It's why I saw an opportunity in the Bassiouni report on Bahrain, but have been so disappointed by the regime's refusal to seriously implement its findings.  Long ago, I argued against the NATO intervention in Kosovo because it undermined the international legitimacy and legality of humanitarian intervention, and today I worry for the same reason about Anne-Marie Slaughter's suggestion that intervention in Syria should be carried out without Security Council authorization.   Whatever actions we take should build rather than undermine the foundations of global norms against impunity for atrocities.

But I also believe that the broad consensus already expressed across multiple international institutions about the nature of Syrian regime atrocities reduces the force of this critique.  As noted above, the UN Human Rights Council and the General Assembly have overwhelmingly and formally endorsed international attention to the Syrian atrocities.  I would argue that the ICC was created precisely to deal with such atrocities, and that bringing it into play would build rather than undermine those norms.  This is a debate which is well worth having -- and one which I look forward to continuing.  

(*) I added this second path a few hours after the original publication of this post. 

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