There is no Military Solution for Syria

The violent repression of pro-democracy protesters in Syria presents a difficult challenge for President Obama and his policy makers that is unlike any other in the Arab Spring. Since Defense Secretary Robert Gates said on March 28th that there will be no military intervention in Syria on March 28th, the severity of the government crackdown against protesters has escalated significantly. The Syrian intelligence services, or mukhabarat, is reported to have shot soldiers who refused to fire on protesters, snipers have been clearing the streets, a journalist was sent to an Iranian detention center, civilians fleeing into Lebanon have been turned over to the Syrian military, corpses showing signs of torture have been left in public squares, a mass grave outside Daraa has been uncovered, and tanks have shelled cities.

Some criticize Obama for inconsistent standards for intervention, considering his decision to step in during the backlash against protesters in Libya. The truth is that the issues in Syria are very different and an intervention by the U.S. military would not lead to a quick and decisive result.

Syria is a country of 22 million people in an area similar in size to North Dakota. The Assad family has been in control of the government, military, and economy since Hafez al-Assad appointed himself president in 1970. Hafez, the current president's father, ousted President Nureddin al-Atassi and Ba'ath Party Secretary General Salah Jadid that he had recently helped install in 1963. After decades of tumultuous leadership, Hafez al-Assad consolidated power by stocking the military and ubiquitous secret police with family and members of his Alawite religious sect, a group which accounts for 10% of the population. With the security services as the backbone of his regime, the final piece of the puzzle was establishing a patronage system for wealthy Sunnis. This created a system were business interests were dependent on Hafez's favoritism. Aside from his cult of personality portraying him as an omniscient, infallible father figure, his indelible legacy is razing the city of Hama (See Hama Rules for more). Hafez's oldest son Basil had been groomed to succeed  as president until Basil died in a car crash in the early 90's. After Basil's death, Hafez recalled his middle son Bashar from London where he had been studying to be an eye doctor. When Bashar took over the presidency after his father died in 2000 he was widely touted as a reformer. His inaugural speech made a point of emphasizing reform language. As recently as the end of March, American officials were still referring to him as a reformer. It is fairly simple to trace the arc of his father's career to the current regime. Before Hafez took over as president, the regime ruling Syria was divided in two camps, those focused on social reform and those who sought safety with the iron fist of the military. When Bashar took over, he maintained the system his father had established by promoting siblings and cousins to positions of prestige in the military and business world. Bashar has taken steps to liberalize the economy, opening the Damascus Stock Exchange, permitting private banks, lowering interest rates, and cutting subsidies. While the economy has grown, the benefits are enjoyed most by those with connections to the ruling family. Bashar al-Assad's rule has been mainly focused on prolonging his own presidency.

When considering America's experiences in Rwanda, Haiti, Somalia, Iraq and the Balkans, it is clear that the general rule of American humanitarian expedition is that the potential for American casualties needs to be low, there needs to be a clear definition of obligations, and most importantly, any kind of action must lead to stability in some way. Intervention in Libya will be the exception. The U.S.'s military might is not going to be an effective tool in supporting democratic movements in the Arab Spring. The recent protests have hinged on the domestic military's willingness to kill civilians on behalf of the ruling elite:

• The Tunisian revolution was allowed to run its own course as the military refused to shoot at protesters and the president fled. 
• The U.S. role in Egypt's revolution is more difficult to discern. Hosni Mubarak was cooperative with U.S. goals and the U.S. was willing to turn a blind eye to his dictatorship. When protests started, the administration dithered on outright support of the Tahrir Square protesters. 
• In Yemen, the Obama administration has not applied pressure on its erstwhile partner in the War on Terror, President Saleh, to allow democratic reforms. This probably has more to do with the fact that Yemen is a nightmare waiting to happen. The country has gone through two civil wars, the last one in 1994. The national government's control is non-existent outside the capital, there is a strong secessionist movement in the south, and tribal warlords. Yemen is widely regarded as the most heavily armed population in the world, its water supply is dwindling, and khat use is rampant. Oil reserves make up 75% of government revenues, account for 90% of exports, and will dry up within a decade. It has the same population of its neighbor Saudi Arabia and 25% of the land mass. The average age is 18. Yemen is also host to the most active Al-Qaeda franchise. These are all elements that do not bode well for the future.
• In Bahrain, home of the U.S. Navy's Fifth Fleet, Obama stopped at simply urging restraint in the vicious crackdown of protesters. 
• In the case of Syria, the U.S. just passed tougher sanctions targeting president Bashar al-Assad and his inner circle, the European Union agreed on similar sanctions. These are largely symbolic, sanctions are an artifact from a bygone era that now serve to hinder, but by no means will they uproot regimes. With Syrian - U.S. relations on the rocks for years, there are probably few economic relations that sanctions would actually affect. 

Gaddafi's regime is an easy target. The man is an international pariah, and it was clear that no one would lift a finger to help him if the U.S. and NATO dropped the hammer on him. Once a prominent Pan-Arabist he is widely hated amongst Arab League states, he asks European governments to humiliate themselves before allowing access to Libyan oil, he ordered the Lockerbie Bombing, and he is still blamed for disappearing the Shiite cleric Musa al-Sadr. He has restyled himself as a Pan-Africanist and a few years ago he was anointed the "King of Kings" by a collection of African tribal kings. When the Libyan civil war started a delegation of heads of state and foreign ministers fronted by South African premier Jacob Zuma attempted to broker a peace deal that essentially said that the rebels would give up their arms and Gaddafi would think about maybe making some reforms. Gaddafi soured his inter-African relationships by treating his peers as junior partners.

Syria is a horse of a different color. The regime is a favorite client of Iran, receiving training, supplies, and weapons. The two countries also share a defense pact. While Syria's military may not be on par with that of the U.S., they have been very active in stifling American objectives in the region in a variety of ways: 

• actively supporting Hamas and Hezbollah attacks on Israel.
• funneling militants into Iraq to fight the American occupation.
• building a secret nuclear reactor in a rogue act that unsettled its neighbors in a region in which secretive nuclear facilities are a sensitive issue i.e. Israel's unacknowledged nuclear weapons, Iraq's alleged attempts to build a nuclear bomb, tensions regarding Iran's efforts to establish themselves as a nuclear force.
• controling the Lebanese government through bribes and extortion.

National Public Radio featured a story about inevitable change in Syria, but with the level of brutality used to quash protests, the Syrian rebellion seems more likely to follow the trajectory of Iran 2009, when protesters were murdered and tortured, and ultimately the movement was successfully suppressed. The root causes of the rebellion will be left to simmer. John McCain rightly said that Syrian protesters should not expect a military intervention. Although disheartening, it is better to be up front about what support the U.S. can offer rather than tepidly offer support and then hang rebels out to dry like Iraqi Kurds after the Gulf War in 1991. There will not be a military solution to Syria, but what the U.S. could do is use its influence in the World Trade Organization to accept Syria, which has applied twice and been rejected both times. In exchange, President Assad would have to step down and agree to disassemble the familial controls over the government, economy, and security forces. This is highly unlikely considering that Syria relies heavily on the patronage of Iran and the acquiescence of Russia on the UN Security Council.

Most Syrians have only known the chaos of the pre-Assad rule and the tyrannous reign that has been going on in the 40 years since, and any proposed transition will be raise the specter of violence seen in Iraq, Afghanistan, and recent attacks on women and religious minorities in Egypt. After 40 years of brutalizing political dissidents and snuffing out Islamists, there are plenty whose yearning for justice will not be satisfied by having Assad sidelined and may seek retribution.

Syria presents a tempting prize for intervention advocates. Syria is vital to myriad nations' security, energy, democratic, and economic plans. For interventionists, the ideal outcome would be unplugging Syria as Iran's link to Hamas in Gaza and Hezbollah. Also, the secret peace talks with Israel brokered by Turkey would be cemented after being broken off because of the 2009 Israeli conflict with Hamas. Thirdly, the long border with Iraq would remain quiet (Assad had quietly shut down the border to militants years ago). Syria produces modest quantities of oil and natural gas, but its location makes it a key hub for pipeline networks. Also, the economy is largely underdeveloped, but it had been making baby steps in becoming slightly more cosmopolitan. But none of this will be possible through violence. Forcibly removing the ruthless dictator and his inner circle would leave a greater void than was left in Iraq. There needs to be an orderly transition of power and that would require Assad to voluntarily hand over the reins. Unfortunately, if a country with strong diplomatic, economic, and security ties to Syria, like Turkey, cannot persuade the Assad regime to curb the violence, then the U.S. has few effective options and will be relegated to waiting in the wings.

Is the World a Better Place for Having an International Criminal Court?

AMICC Representative Participates in University of Minnesota Law School Debate on the US Involvement in the ICC


By Kristen Rau, Juris Doctor Candidate University of Minnesota Law School and Master of Public Policy Candidate, Humphrey School of Public Affairs, University of Minnesota; and Jordan Shepherd, Juris Doctor, University of Minnesota Law School.

The University of Minnesota Law School’s Federalist Society, Law School Democrats, and International Law Society co-hosted a panel debate on March 22, 2011, “Is the World a Better Place for Having an International Criminal Court?” Speaking in support of the International Criminal Court (ICC) was Duane Krohnke, University of Minnesota Adjunct Professor and Provisional Organizer of the Minnesota Alliance for the International Criminal Court. David Wippman, Dean of the University of Minnesota Law School and a former director in the Office of Multilateral and Humanitarian Affairs of the National Security Council under the Clinton administration, took the neutral position. Professor Eugene Kontorovich of Northwestern University School of Law, argued the anti-ICC position.

Professor Kontorovich questioned both the ICC’s advisability and its constitutionality, beginning with the latter to obviate the need to consider the former. Professor Kontorovich asserted that U.S. membership would be unconstitutional for two reasons. First, U.S. membership would expose U.S. citizens to trials without the structures of an Article III court. While non-Article III courts may be constitutionally permissible in limited circumstances, these do not include core issues such as criminal trials. Second, U.S. membership would deprive criminal defendants of certain procedural rights guaranteed by the Constitution, such as the right to a grand jury.

Professor Kontorovich emphasized that the ICC is not the first international court that has solicited U.S. support and been resisted, highlighting 19th century British slave-trade courts in which the U.S. declined to participate. Most treaty negotiations, and the constitutional argument that spelled the death knell of U.S. involvement, were led by John Quincy Adams. Noting that the constitutionality of U.S. membership could be saved by limiting the ICC’s jurisdiction to exclude all non-universal jurisdiction crimes, Professor Kontorovich identified the unlikelihood of such a development due to the Rome Statute’s prohibition of reservations.

Professor Kontorovich concluded with a survey of reasons for which the ICC could be considered a failure: the sluggishness of the trial process, the failure to convict any defendant, and the absence of empirical research demonstrating meaningful deterrent effects. Professor Kontorovich further suggested that the ICC could actually extend conflict by inhibiting peace deals when militants or regimes see international criminal prosecution as unavoidable in spite of ceasing or surrendering. Moreover, Professor Kontorovich referred to Kenya, where piracy trials were halted as several government officials came under ICC scrutiny for their alleged role in the 2008 election violence, for the proposition that the ICC may do more harm than good. In response to questions from the audience, Professor Kontorovich suggested that ICC supporters must revisit the fundamental approach of the Court and recognize that it, like Nuremburg, was an emphatic endorsement of victors’ justice rather than a triumph of international justice. Finally, Professor Kontorovich argued that the recent definition of the crime of aggression within the ICC’s jurisdiction could push states like the U.S. even further from ratification, since military campaigns such as the bombing of Kosovo could be categorized as “aggression.”

Professor Krohnke presented the affirmative argument that the ICC does, indeed, constitute a positive development in international justice, concluding that the U.S. should ratify the Rome Statute. This argument is based on six propositions: 1) the Court will prosecute and punish those guilty of the most serious crimes, 2) the Court provides deterrence from such crimes, 3) the Court promulgates the truth about these crimes, 4) the Court assists victims, 5) the Court is active and appears to be permanent, making U.S. involvement pragmatic, and 6) U.S. involvement and membership is proper under the Constitution. Professor Krohnke suggested that the ICC operationalizes international human rights norms stemming from the 1948 Universal Declaration of Human Rights and seeks to replace impunity with accountability. Despite its slow development and initial operationalization, he suggested, the ICC will develop into an important global institution. Citing forthcoming research by Professor Kathryn Sikkink in The Justice Cascade: How Human Rights Prosecutions are Changing World Politics (forthcoming in 2011 by W.W. Norton), Professor Krohnke argued that there is empirical evidence supporting the deterrent effect of international and domestic prosecutions of human rights crimes. Moreover, Professor Krohnke suggested that the ICC contributes to promulgation of the truth, supports victims’ assistance, and fosters pragmatic international relations.

Professor Krohnke addressed the U.S. constitutional criticisms of the ICC, noting that there is no evidence that its text bars U.S. involvement. He cited Missouri v. Holland to illustrate the broad application of the treaty power in relation to the Constitution and the protective requirements of executive agreement, the advice and consent of the Senate, and a two-thirds Senate vote for ratification. Professor Krohnke concluded with several responses to Professor Kontorovich’s position. Professor Krohnke suggested that ICC critics rely too heavily on early U.S. resistance to 19th century British slave court, particularly given the possibility that U.S. resistance was due to the political influence of southern U.S. states or to an American inclination to avoid post-Revolution entanglement with Great Britain.

Dean Wippman suggested that the ICC is fundamentally “a good idea that has been badly implemented.” Failing to command the political and financial support it needs, the ICC cannot live up to the hopes of its supporters. Yet, neither can it live down to the fears of its critics because it does appear to reinforce human rights norms and contribute to stability in some post-conflict societies.

Dean Wippman identified practical constraints, including jurisdictional loopholes, investigation and enforcement limitations, and procedural hurdles, as particular problems. Moreover, Dean Wippman noted the limited evidence of deterrence or social education that ICC supporters have long claimed. For example, Dean Wippman suggested that ICC trials may demonstrate that responsibility for human rights abuses rests with individuals; alternatively, they may also confirm pre-existing social biases. Dean Wippman acknowledged, however, that the specter of the ICC may effectively marginalize nationalist politicians and may, as in Latin America, allow national governments to shift power balances in favor of peace agreements.

Dean Wippman, modestly disclaiming expertise in constitutional law, addressed the constitutional question briefly. He noted that Professor David J. Scheffer, a major contributor to the drafting of the Rome Treaty, has argued persuasively for the ICC’s constitutionality. Further, the Clinton administration signed on to the Rome Statute with Department of Justice advice that U.S. signing and eventual ratification were permissible under the U.S. Constitution.

The debate concluded with a lively question-and-answer session, in which the participants fielded incisive questions and further developed and responded to arguments. Professor Kontorovich conceded that the ICC is not an insidious institution that is causing great harm to U.S. interests even though he disputes its effectiveness. Professor Krohnke emphasized the progressive development of this young but growing institution, especially the expected conclusion this summer of the first trial of Thomas Lubanga of the Democratic Republic of Congo. Finally, Dean Wippman stated that the disparate impact of the ICC across states and conflicts behooves supporters and critics alike to recognize its potentially variable effects around the globe.

Mahesha Subbaraman, the President of the local student chapter of the Federalist Society, moderated the debate but did not declare a winner. Nor was there any vote taken of the more than seventy-five students and faculty in attendance to determine who "won" the debate. The debate highlighted many issues surrounding the ICC and helped to raise awareness of this developing institution.

*Cross-posted from The American Non-Governmental Organizations Coalition for the International Criminal Court (http://amicc.blogspot.com/2011/03/amicc-representative-in-minnesota.html)

Osama Bin Laden: The Militant, The Myth

Osama Bin Laden’s death was a stunning development for people around the world. We are faced with many questions about what comes next. Is the world a safer place? Yes. Nevertheless, will soldiers in Afghanistan stop worrying about improvised explosive devices? Will airport security no longer require passengers to remove their shoes? Can the U.S. pull troops out of Afghanistan tomorrow? Is the War on Terror over? No, unfortunately. The clearest take-away from Bin Laden's death is some measure of solace for the victims of 9/11, the men and women of the armed services, and their families.

The emotional celebrations in front of the White House are understandably an important part of a national catharsis. However, the media's eagerness to capitalize on the charged national mood by offering a tidy summary is misleading. Although Bin Laden's death is undoubtedly a landmark in the War on Terror, it by no means represents crossing a finish line. We do not yet know how involved Bin Laden was in the training, financing, and planning of Al-Qaeda's operations in recent years. If he had become disconnected from the core leadership while on the lam, then his death may not cause a serious operational disruption to the group. The symbolic significance is undeniable, but on its own, still may not be sufficient to cause the collapse of the organization. Audrey Kurth Cronin, author of "How Terrorism Ends," argues that "decapitation" is usually not enough independent of other factors. The recent democratic uprisings across the Middle East and North Africa have done a great deal to de-legitimize Al-Qaeda's founding premise that only asymmetrical holy war can bring about change. Couple that shifting landscape with the dramatic increase in drone strikes  in Afghanistan and Pakistan, and Bin Laden's death may be enough to end Al-Qaeda as we know it.

9/11 was the most spectacular and traumatizing terrorist attack this generation has ever seen. After the attacks on New York and Washington, Bin Laden's legend grew to iconic status as the head of a terrorist organization with global reach and an agenda to take down the world's only super power. Before that terrible day, Bin Laden had been on par with the likes of Joseph Kony, the MRTA, Muammar Gaddafi, Idi Amin; murderous oddities on the fringe of American consciousness. Then entire world then knew the name Osama Bin Laden, a mass murderer and ideologue who delusionally strove for a transcontinental religious empire. For jihadist wannabes, he became an oversimplified brand whose subtext was deliverance from injustice, disrespect, and the ruin brought about by modernity. Other extremists took his mantle and started their own Al-Qaeda franchises in Iraq, Algeria, Egypt, Libya, Yemen, Saudi Arabia, Somalia, and even China. Terrorist groups similar to Bin Laden's Al-Qaeda will not stop targeting Americans. Extreme ideologies without the capability to confront a juggernaut like the U.S. military will always rely on ambushes, hiding amongst civilians, prying opportunities in open, cosmopolitan societies. As Bin Laden became more notorious, his role in directing attacks diminished, but the spread of his ideas is what made him most dangerous.

The death of Osama Bin Laden is certainly worth celebrating and while watching the revelry outside the White House I was struck by how young some of the people were. Some must have been children in 2001. It dawned on me that we too had bought into an oversimplified, grandiose idea of who Bin Laden was and what he stood for. As if all these extremist militants under his mantle would quietly go away, as if in an action movie. After 9/11, sympathy and support poured in from around the world and it was squandered in a wasteful war that had nothing to do with the attacks on two cities most emblematic of the United States. While rousing support for the War on Terror the United States became shamefully at ease with the blanket suspicion of Muslims. Islam was portrayed as a hateful monolith. There was no distinction made between secular dictators, militant groups with local agendas, and those touting a global holy war. Americans were told that breaking a tradition of anti-torture that was as old as their country was beyond question. Patriotism was said to trump the trampling of civil liberties. The United States had killed its boogieman, but terrorism did not start with Bin Laden and it will not end with his death. Justice has indeed been done, but the ideals that make the United States so great have been stained.


 

1: "Year of the Drone" New America Foundation