Harry Lee Anstead and Mark Schlakman: Disregard for international law cannot be tolerated


Published: Monday, September 30, 2013 at 4:49 p.m.
Last Modified: Monday, September 30, 2013 at 4:49 p.m.

The diplomatic initiative which recently averted, at least temporarily, a limited U.S. military strike against Syrian President Bashar al-Assad’s regime for use of chemical weapons near Damascus on Aug. 21 that reportedly killed approximately 1,400 people, many of them children, evoked a range of reaction across the domestic political spectrum and within the international community.

That attack constituted a clear violation of the Chemical Weapons Convention that prohibits their use and production, and provides for their elimination and subsequent oversight. Apart from Syria, every country recognized by the United Nations except Angola, Egypt, Israel, Myanmar, North Korea and South Sudan has ratified this treaty.

While elimination of Syria’s chemical weapons stockpile, its accession to the Chemical Weapons Convention and a renewal of efforts to convene a peace conference for purposes of developing a framework to reach a political solution are critically important objectives that may be attained through cooperation between the U.S. and Russia, the Syrian conflict also presents a compelling opportunity to underscore that those who violate international law will be held accountable by the global community.

For example, referring such matters to the International Criminal Court, an independent institution established by the Rome Statute with qualified jurisdiction to investigate and prosecute war crimes, crimes against humanity and genocide, would represent an important step toward that end.

Assad continues to deny responsibility for the Aug. 21 attack and asserts culpability lies with the opposition. However, a report released by the U.N. last week indicates likely Assad regime involvement without specifically assigning blame. The Obama administration previously concluded evidence of the regime’s culpability was strong.

Other U.N. reports point to evidence of prior war crimes and crimes against humanity committed by both pro-government forces and, to a lesser extent, the opposition during the 30-month long conflict which now reportedly includes at least four discernible sub-elements: Syrians against the regime, Sunnis against Shia, al-Qaeda-linked groups against secular interests and a proxy war involving the Saudis and Iran within which Hezbollah is engaged.

The U.N. Human Rights Council heard evidence recently that of nine mass killings investigated for the report at issue, eight were attributed to government forces and one to the rebels.

Thus far, an estimated 100,000 people have been killed during the crisis, 2,000,000 people fled the country and 4,000,000 people displaced internally.

Because Syria isn’t a party to the Rome Statue (nor is the United States) consensus among the five permanent members of the U.N. Security Council essentially would be required for ICC jurisdiction, which thus far has proved elusive. Ironically, this tribunal might afford Assad his best opportunity to plead his case.

Despite the U.N.’s remarkable history, the international system is still a work in progress and is periodically paralyzed by obstructionist tactics influenced by divergent agendas. There hasn't been meaningful movement on reforms that might help change the corporate culture of the Security Council, streamline its proceedings without undermining original intent to facilitate consensus, and more accurately reflect the 21st Century balance of power.

The United States has played an instrumental role shaping the international system and within the context of negotiating numerous exceedingly important treaties that serve as part of its framework only to decline to ratify a number of them, including the Rome Statute.

In practical terms, the United States might be less inclined to take unilateral action, a.k.a. to serve as world policeman, if there were more effective means to achieve multilateral consensus and to foster principles like wanton disregard for international law cannot be tolerated. Similarly, that use of force should be sanctioned only in self-defense or by authorization of the U.N. Security Council, and that virtually any other application of force would constitute an act of aggression.

Simply put, strengthening the international system is in the enlightened self-interests of the United States, and fully consistent with America’s historic advocacy of the rule of law. Holding despots accountable for mass killings of their own people by poison gas is surely a worthy cause. The opportunity is there, will we embrace it?

Harry Lee Anstead is former chief justice of the Florida Supreme Court and Mark R. Schlakman is senior program director for the Center for the Advancement of Human Rights at Florida State University.

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