I spoke with Rep. Smith by phone about how his proposal would work, and why he was opposed to the Obama administration's push for military action.
Brad Plumer: Tell me about your proposal to set up a Syrian war crimes tribunal. Why is this preferable to military strikes?
Chris Smith: I've worked on three different war crime tribunals over the years: The Yugoslavia tribunal, the Sierra Leone tribunal and the Rwanda tribunal. What I've seen is that if there’s the political will to go after people who have committed crimes against humanity, and if you have a dedicated team of prosecutors, then it's a non-lethal way of holding people to account.
Already President Obama has said he won’t target Assad with missiles. Instead we'll target 20-year-olds who might be on an air force base. I find that strange, that we're not looking for regime change. Let's go after the actual perpetrators.
A tribunal would be a non-lethal alternative to a bombing campaign — which no one knows how long it will last. During the House hearing [on Wednesday], I asked Secretary Kerry: How do you define "limited"? How do you define "short duration"? And he didn't answer. There's no sense that bombing will end this war. No one is even remotely suggesting that. And I’m equally concerned about a strike where there are consequences that have or haven't been anticipated that could occur.
BP: So how how would a war crimes tribunal work, exactly? Take me through it step by step.
CS: We would start by immediately gathering documentation about atrocities committed in Syria. We'd let everyone in the chain of command there know that people will be held to account as quickly as possible. And what I said in the resolution is that this has to be immediate. The biggest problem with the Yugoslavia tribunal is that it was slow in getting started.
One of the things I've learned, and something that I've heard from prosecutors, is that the ability to turn lower-level people against higher-level people is something they need to be able to do to hold people in the chain of command liable.
And by the way, this tribunal would apply equally to the rebels, who are committing atrocities every day of the week. I held a hearing in June about attacks on Christians [in Syria], which the witnesses construed to be genocide. And the rebels were the ones doing it. So no matter who commits the atrocity, they'll be held to account.
BP: But doesn't Syria's civil war have to end before any of this can actually happen? Otherwise couldn't Assad just ignore it?
CS: Not really. That was my chief problem with the Clinton administration [during the 1990s]. With the Yugoslavia tribunal, I was shocked how the Clinton administration didn't want to resource it. We had studies showing that we were losing witnesses to mass atrocities because they didn't have protection or because they weren't asked early on and their memories faded.
We can stand up this court immediately. The idea of saying we’re going to put an extreme focus on prosecuting would have a huge impact.
BP: Is the idea here that the mere existence of a war crimes tribunal might deter people inside Syria from committing war crimes?
CS: I can’t say for sure that it will have a chilling effect. But look at how even [President Omar] Bashir in Sudan is now extraordinarily concerned about where he goes [after being indicted by the International Criminal Court]. He was planning a trip to Turkey and then canceled because many of us were calling for him to be extradited.
It shows the power of what happens when everyone's watching and you know you will be held accountable. Before Bashir got indicted, he was a free agent. Even people like Charles Taylor [who was indicted of war crimes by the Sierra Leone tribunal] understood this when he fled to Nigeria, then the Nigerians coughed him up, and now he's convicted. People get genuinely concerned when they're isolated and know that we're going to be relentless until they're behind bars.
So I think there’s no guarantee here, but there's also no doubt it could be extraordinarily valuable as a tool to hold people to account. And look, nothing is a panacea, nothing is foolproof. But compare it to a bombing campaign that is ill-defined, that's of who-knows-how-long duration with potentially huge unintended consequences.
BP: That raises another question. We already have the International Criminal Court that exists to go after war criminals. Why not use the ICC?
CS: There is the ICC, but we’re not a party to it and neither is Syria. There is a mechanism that would allow us to refer cases to the ICC [through the U.N.], but that has been slow. So maybe some adjunct or hybrid effort could be worked out. But I've heard nothing from the administration about a Syrian court. And I would have thought they would come up with it sooner.
BP: As I understand it, the U.N. Security Council could refer Assad to the ICC for prosecution, but China and Russia are likely to oppose it. Wouldn't that be a problem for your tribunal?
CS: I think there is the potential to get China and Russia to agree to a tribunal, provided it applied equally to the rebels as well as the Syrian regime. This would be a non-lethal approach to Syria and would put them on the wrong side of justice for all and holding mass murderers to account. The pressure would be very profound. But it hasn't even been tried. So why not try it before this bloodletting gets much worse?
BP: And, just to be clear, it sounds like you're voting against the military resolution on Syria?
CS: I’m against it. I weighed it, I thought about it, I went to the House Intelligence Committee and read the assessment. And I came away less persuaded after doing that. Then we had the [House Committee on Foreign Affairs] hearing, and that’s when I decided that I was a no.
One last thing, I did ask Secretary Kerry [at the hearing], do we have proof that Assad himself ordered the attack? He wouldn't answer me. Now, I do believe it was Assad's forces, although we still don’t know that absolutely. But he didn't answer that question. And that was very disturbing.
The administration's first draft of the resolution [authorizing military force] also gave signals that they were envisioning a much larger operation. Otherwise why would it be so open-ended? It's been narrowed by the Senate, but I'm still voting against it. Up to 90 days doesn't sound too short to me.
This interview has been lightly edited for length and clarity.