September 13, 2013

Rep. Chris Smith, a Republican from New Jersey, chairs the House Foreign Affairs Committee’s human rights panel.

There is a non-lethal way to help ensure that Bashar al-Assad and other perpetrators of atrocities in Syria are held to account, not someday far in the future but beginning now.

The U.N. Security Council must move immediately to establish a Syrian war crimes tribunal. Past ad hoc war crimes tribunals — including courts for Sierra Leone, Rwanda and the former Yugoslavia — have made a difference, but they sent thugs to jail only after hostilities ended. Regarding Syria, a new sense of urgency and commitment requires initiating investigations and prosecutions now to send a clear message to those who commit genocide — and to those just following orders — that such barbaric behavior has dire personal consequences.

Even if the plan by Russian President Vladimir Putin to place Assad’s chemical weapons in the custody of an international entity comes to fruition, the moral imperative to establish the court remains necessary and compelling. Horrific acts of brutality have and continue to be committed with impunity. No one anywhere should get a pass because of an arms-control deal.

On Monday, I introduced a bipartisan congressional resolution urging the president to use our voice and vote at the United Nations to create the Syrian War Crimes Tribunal.

Can a Security Council resolution establishing a Syrian tribunal prevail? Yes. With a Herculean diplomatic push by the United States and other interested nations, past success in creating war crimes courts can indeed be prologue. Notwithstanding Russia’s solidarity with Serbia during the Balkan war, the International Criminal Tribunal for the former Yugoslavia (ICTY), now in its 20th year, was unanimously approved. Ditto for the special court in Sierra Leone in 2002. The Rwanda tribunal was created in 1994, with China choosing to abstain rather than veto.

At the Syrian court, no one on either side who commits war crimes, genocide or crimes against humanity would be precluded from prosecution. In the early ’90s, the Russians knew that the ICTY was designed to hold all transgressors liable for punishment — not just Serbians — and did not veto the Security Council resolution that instituted that court. I believe the Russiansand the Chinesecan be persuaded to support or at least abstain from blocking establishment of the court.

An ad hoc, country-specific court has significant advantages over the International Criminal Court (ICC) as a venue for justice. For starters, neither Syria nor the United States is a member of the ICC, although mechanisms exist for both of them to push prosecutions there. The ICC has operated since 2002but boasts only one conviction. In contrast, the Yugoslavia court has convicted at least 67 people; Rwanda, 26; and Sierra Leone, 16. Moreover, a singularly focused tribunal that provides Syrians with a degree of ownership could enhance its effectiveness.

Meanwhile, the Obama administration’s call for military strikes intensified for days. At a House Foreign Affairs Committee hearing last week, I asked Secretary of State John Kerry whether there was proof that Assad had ordered the Aug. 21 chemical weapons attack in a Damascus suburb. I also asked him for rudimentary clarity of mission — for definitions of “limited strike” and the expected “duration” of any potential U.S. attack.

Astonishingly, Kerry failed to answer those pertinent questions.

The Obama team has been shrill, suggesting that not using military force constitutes doing nothing. Support missiles and bombs, or the moral implication is that you embrace the status quo.

Never does the Obama team admit that wielding powerful weapons against Syria is fraught with potentially disastrous consequences, not just inside the war-torn country but also throughout the region. No one knows whether U.S. strikes would mitigate or exacerbate the violence. And with the rebels’ ranks swelling with al-Qaeda extremists, would military action by the United States help or hinder any future transition to humane and responsible governance in a free Syria? What are the risks to U.S. service members and allies in the region?

Additionally, the ugly specter of Syrian civilians being wounded or killed by U.S. firepower cannot be overlooked, trivialized or dismissed.

Switch gears, Mr. President. Fight to establish a Syrian war crimes court and hold Assad and the rebels who commit egregious crimes to account.