Obama and Assad: The ‘golden exit’ from the Syrian calamity

Obama and Assad: The ‘golden exit’ from the Syrian calamity

Chibli Mallat, 14/08/2016

(PDF version) Unless Obama reverses course dramatically, and even if he does it at this late stage, the stigma of Syria will outweigh his foreign legacy forever.

There are photographs on the internet of US President Barack Obama looking happy with his daughters next to pictures of child victims of the Syrian tragedy. The viewer is crudely asked to believe the US president as having responsibility for the misery that has befallen Syria under his watch.

Also recurrent in social media is a picture of Syrian President Bashar Assad smiling at a little girl, probably his daughter, next to a frame showing another little Syrian girl disfigured and maimed.

In the case of the US president, international law has not reached a maturity that allows punishment for crimes of omission. This is hard enough to establish in domestic law and is far-fetched on the international scene.

The so-called good Samaritan responsibility, what the French criminal code describes as the crime of non-assistance à personne en danger, remains alien to common law. Still, it is legitimate to ask how the grey hair that Obama complained was caused by his “meetings on Syria” squares morally with the famous Atlantic interview where he expressed his “pride” over “(my) Syria policy”.

Does this grey hair not entail some criminal responsibility for the tens of thousands of dead Syrian civilians he turned his back on by rejecting any form of protection, let alone a safe haven for them in Syria despite the insistent advocacy by top aides since 2011?

The question may be legitimate in the sphere of morals. In the present state of international criminal law, responsibility by omission remains elusive.

The case of Assad, in contrast, is hardly one of omission. Documentation of the crimes perpetrated under his rule is massive.

Since 2011, there appear time and again long investigative articles on the scale of the crimes perpetrated by his forces and their allies in Syria, in addition to detailed reports issued by think-tanks and human rights organisations, even protests and requests for accountability by various agencies and officials at the United Nations.

While dampened by the horrors of the Islamic State (ISIS) and other Islamic and oppositional groups, the reason we hear less about the criminal consequences inherent to these crimes lies chiefly in the silence of the diplomats, especially Staffan de Mistura, the UN envoy on Syria. Diplomats are busy pushing unworkable ceasefires and roundtable meetings featuring Assad in the middle. They wrongly think that the chances of success require muting any sort of criminal responsibility for a man they need at the negotiating table.

The schizophrenia is not new. Whether in Yemen, where former president Ali Abdullah Saleh ensured that an immunity clause for him was expressly built into the November 2011 accord, or in other instances the world over, the golden exit for dictators is carefully preserved by diplomats.

The argument goes like this: If we want an end to the civil war, we need to preserve the dictator’s future against prosecution; otherwise he will never agree to exit, let alone come to the round table.

There have been exceptions. In the Dayton agreement, the late Richard Holbrooke refused to include a golden exit for Slobodan Milosevic and history proved him right.

In contrast, the mistake of the UN special envoy to Yemen, my friend Jamal Benomar, was to allow the immunity clause to remain active. Saleh spoiled all his efforts to bring together Yemen on a democratic path. Instead of Saleh being arrested and tried, he was allowed to ally with the Houthis (whose leaders he had assassinated over the years) to take over Sana’a in the summer of 2014 by force, triggering the Saudi military intervention and the bottomless miseries since.

Golden exits and immunity pacts are a bad idea. Their deformation of basic morals in the course of history far outweighs their benefits.

How to read the tea leaves on the respective responsibility of the US and Syrian presidents five, ten, 20 years from now? Unless Obama reverses course dramatically, and even if he does it at this late stage, the stigma of Syria will outweigh his foreign legacy forever but it is unlikely to entail criminal consequences.

As for Assad, his criminal responsibility under international law has been established beyond doubt. The question is whether it will hound his family. Saddam Hussein and Muammar Qaddafi do not provide good precedents.