The Middle East Channel

Militants attack a Yemeni military base killing up to 85 soldiers

Al-Qaeda-linked militants, from the group Ansar al-Sharia, launched a surprise attack and detonated two suicide bombs outside a Yemeni army post west of Zinjibar, the capital of Abyan province. The militants killed up to 85 Yemeni soldiers and captured 55 more. Twenty-eight militants were also killed during the full day of fighting. The violence comes amid political turmoil after an election officially replaced former President Ali Abdullah Saleh with Abed Rabbo Manour al-Hadi following a year of protests calling for the long-term leader to step down. Clashes have escalated as the al-Qaeda linked militants have occupied large areas within the Abyan and Shabwa provinces.

Syria

The United Nations reported that up to 2,000 people are currently fleeing from fighting in Syria into Lebanon. Refugees have been discussing conditions after the nearly month-long bombardment of the city of Homs, claiming atrocities committed by Syrian soldiers. Unsubstantiated claims also reported that the army was rounding up and toturing and killing remaining men and boys over 14 in the Baba Amr district of Homs. Convoys from the International Committee of the Red Cross (ICRC) and the Syrian Red Crescent have distributed supplies in Homs, but have not been allowed access to Baba Amr. Meanwhile, violent clashes spread into the southwestern city of Daraa where Syrian opposition forces killed six soldiers and wounded nine. China is currently sending an envoy to Syria to push for an end to the violence, while Russia announced it would meet with the Arab League on March 10 in Cairo. The United Nations has reported that the death toll in Syria has exceeded 7,500.

Headlines  

  • Gunmen killed up to 27 Iraqi security forces in targeted attacks on checkpoints in the majority Sunni city of Haditha.
  • In preliminary results of Iran's parliamentary election, allies of Ayatollah Khamenei are reported to have won 75 percent of seats, suggesting he will "seek to eliminate the post of president."
  • President Obama spoke at AIPAC committing to prevent Iranian nuclear weapons attainment, but warned those engaging in "loose talk of war" ahead of a meeting with Israel's prime minister.
  • A small bomb exploded near the prime ministry building in the Turkish capital of Ankara, slightingly wounding one person.

Arguments & Analysis

'Netanyahu won't attack Iran -- probably' (Daniel Levy, Foreign Policy)

"If indeed Netanyahu is less keen on a strike than his posturing would have us believe, and if 2012 for Israel's leadership is in fact less about "zones of immunity" that Iranian facilities may acquire and more about "zones of impunity" that a U.S. election year confers on Israeli policy toward Iran, then perhaps this has been the Israeli intention all along: to checkmate the United States by locking it into a logic of confrontation down the road. Israel's position has, after all, been relatively clear in preferring a "stars and stripes" rather than a "blue and white" label on the military taming of Iran. If Obama pursues such a formula and this helps avoid war in the tricky months ahead, it is not to be sneezed at. But at the same time, there is a very real downside to this approach. It carries the promise of greater problems and escalation ahead -- making a negotiated solution ultimately less likely, possibly provoking Iran, and placing Israel in the very unwise position of cheerleading America into a war."

'Beyond NGOs: The Battle for Egypt' (Bahey el-din Hassan, Egypt Independent)

"Last December, a member of the SCAF assembled US correspondents in Egypt to tell them that the parliament, which was still in the process of being elected, did not represent all sectors of the population and that it was unqualified to write the constitution. The next day, another member of the SCAF stated that his colleague had been expressing merely his personal views; since then, both men have disappeared from the public eye. In this context, the question is no longer whether the SCAF will turn over power in June, but rather who has the power to take this decisive step. Has the security apparatus-which has been fed hostility towards Islamists for decades, considering them the primary internal enemy-prepared itself for the day when Islamists come to power? Or for the day after, when Islamists undertake an ideological purge of the apparatus to eliminate members that are perceived as antagonistic to political Islam? The answer to these questions is not unrelated to the crisis of civil society organizations; indeed, it is closely related to the political environment that produced this drama, and the whole tension with the American administration. This political environment indicates an ambiguity in decision-making, one that produced such a messy crises. It is thus crucial to try to understand this battle over ruling Egypt."

'Before attacking Iran, Israel should learn from its 1981 strike on Iraq' (Colin Kahl, Washington Post)

"Short of invasion and regime change -- outcomes beyond Israel's capabilities - it would be nearly impossible to prevent Iran from rebuilding its program. Iran's nuclear infrastructure is much more advanced, dispersed and protected, and is less reliant on foreign supplies of key technology, than was the case with Iraq's program in 1981. Although Barak often warns that Israel must strike before Iran's facilities are so protected that they enter a "zone of immunity" from Israeli military action, Iran would be likely to reconstitute its program in the very sites - and probably new clandestine ones -- that are invulnerable to Israeli attack. An Israeli strike would also end any prospect of Iran cooperating with the IAEA, seriously undermining the international community's ability to detect rebuilding efforts."

--Tom Kutsch & Mary Casey

AFP/Getty images

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. 

ANWAR AMRO/AFP/Getty Images)