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Could Syrian President Bashar al-Assad Be Tried As A War Criminal?


OK, let's turn now to Syria. With all eyes on what the Trump administration may do next, waiting to see if a military strike is imminent, let's turn for a moment to another possible way to hold the Syrian regime accountable. Senator Ben Cardin, a Democrat who sits on the Foreign Relations Committee, was on Morning Edition today. Here's his pitch for how to punish Syrian leader Bashar al-Assad.


BEN CARDIN: To me, the most effective way to deal with President Assad is to bring him before a war crimes tribunal and try him as a war criminal.

KELLY: Try him as a war criminal. So what might that look like? Alex Whiting is a former prosecutor at the International Criminal Court. He's part of a group gathering evidence on war crimes in Syria. He's now a professor at Harvard Law School, and he joins me now. Welcome.

ALEX WHITING: Thank you. Good afternoon.

KELLY: Put your prosecutor hat back on for me. What specific crimes might Bashar al-Assad be charged with?

WHITING: So with respect to the chemical weapons attacks, he could be charged with the illegal use of chemical weapons, which are prohibited, and also with targeting civilians. But more broadly, he could be charged with crimes spanning the seven years of the war, of attacks against civilians, detaining civilians and prisoners and torturing them and also with massive displacement of civilians, all of which are crimes under international law.

KELLY: And when you say crimes under international law, we're talking - what? - Geneva Conventions. Is that what applies here?

WHITING: Yes, that's correct. In customary international law - the Geneva Conventions. The International Criminal Court has codified all of those crimes and has its own statute, and these would all be crimes under the International Criminal Court statute.

KELLY: OK, and let me move you onto another practical question. Where might this come before a tribunal?

WHITING: Well, so that's the more complicated part.

KELLY: All right.

WHITING: The crimes are pretty clear, but the where is much harder because the International Criminal Court, which has been in existence since 2002, only has jurisdiction over countries that are members of the court. And there are 123 members, but Syria is not a member. The United States is also not a member. So there's no automatic way now for the case to come before the International Criminal Court.

However, there is a provision for the U.N. Security Council to refer cases to the court of non-member states. And it has done so twice in the past, once for Sudan and once for Libya. And the United States, I should say, supported both of those referrals. The United States has proposed resolutions in the Security Council to refer Syria to the International Criminal Court. They have repeatedly been vetoed by Russia.

KELLY: One assumes that if Assad were charged with war crimes, he wouldn't voluntarily jump on a plane and report to the ICC or whatever court. So how would that work?

WHITING: As long as Assad is in power, he's not likely to be brought to the Court. And as you say, he won't surrender voluntarily. If, however, he is deposed from power one day, then his opponents or other countries might decide to surrender him to be held accountable. Many leaders - Slobodan Milosevic, Charles Taylor, Ratko Mladic - they never thought that they would be held accountable. They always thought that they would be immune from justice and accountability, and they found themselves being tried in The Hague. So it could happen to Assad.

KELLY: I mentioned that you are working with one of several groups that's gathering evidence on war crimes in Syria. Tell me how that's going and what the purpose is if charges aren't imminent against Assad.

WHITING: Right. So preparations are being made for the day when a tribunal will be set up. So I'm part of the Commission for International Justice and Accountability. Our group has collected nearly a million documents that could be used. It's important that that evidence be collected when it's fresh. It's also - the more evidence that's collected, the more likely there will be accountability because it's going to be difficult once this war ends. And it will end one day. It'll be difficult to say no to accountability when there are mountains and mountains of evidence that have been collected.

KELLY: It sounds, though, as though the legal path for holding Bashar al-Assad or other members of the Syrian regime to account - that that is something for a future track. It's not an immediate response to, say, the alleged chemical attack of this past weekend.

WHITING: That's correct. There's no legal path to charge Assad today or in the future weeks or months for the chemical weapons attack. And I should say that we look at the Syria situation and the possibility of accountability with a lot of despair. And it's been seven years, and many people think it will never happen. But as I said, in many other situations - in Rwanda, in Yugoslavia, for example, Sierra Leone, even Cambodia - it did eventually come to pass. And the institutions were created. The path was established, and the accountability was achieved.

KELLY: The wheels of justice are slow, but they turn.

WHITING: That's correct.

KELLY: That's Harvard law professor Alex Whiting. Thanks so much for your time.

WHITING: Thank you.

(SOUNDBITE OF BLUE SCHOLARS' "JOE METRO") Transcript provided by NPR, Copyright NPR.

Mary Louise Kelly is a co-host of All Things Considered, NPR's award-winning afternoon newsmagazine.
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