U.N. report on Syria gas attack fuels calls for Assad's prosecution

WASHINGTON — A day after United Nations inspectors confirmed a nerve gas attack in Syria, the European Union's foreign policy chief joined many of America's closest allies in demanding that Syria's leaders be brought to justice for what U.N. Secretary General Ban Ki-moon called a war crime.

That isn't likely to happen, however. In addition to Russian and Chinese objections, the Obama administration has withheld support, partly because it doesn't want to jeopardize any deal that might end the bloodshed in Syria.

One effect of the U.S.-Russian plan to require Syrian President Bashar Assad to give up all his chemical weapons is that the White House has become more invested in ensuring his future cooperation. The U.N. inspectors' report provided airtight evidence that Assad's forces fired rockets filled with sarin gas into Damascus suburbs on Aug. 21, killing more than 1,000 people, U.S. officials said, but it did not change their calculus regarding prosecution.

DOCUMENT:  U.N. report on chemical weapons use in Syria

 An indictment on war crimes charges would turn Assad into an international pariah and restrict his ability to leave Syria without facing arrest. It thus would give him little incentive to ultimately give up power, President Obama's goal since the Syrian civil war broke out in March 2011.

Prosecution "is a long shot at best," Andrew Tabler, a Syria specialist at the Washington Institute for Near East Policy, said Tuesday.

Instead, if Assad allows international inspectors to remove or destroy his poison gas stockpiles and related infrastructure, as the plan calls for, many diplomats and analysts believe the United States and other world powers eventually may offer him amnesty as part of negotiations to get him to leave office.

Any country can prosecute war crimes, genocide and torture under what's known as universal jurisdiction, meaning the crime could have occurred elsewhere. But the most direct route to prosecution would be for the U.N. Security Council to refer the case to the International Criminal Court, an independent judicial body that is based in The Hague.

The United States isn't a signatory to the International Criminal Court, but it has cooperated with the tribunal and expressed support for some of its activities.

Six of the 15 members of the U.N. Security Council and 58 U.N. members, including France, Germany, Britain, Japan and South Korea, are on record as favoring a referral of Syria's leaders to the ICC, as the court is known.

Catherine Ashton, the EU foreign policy chief, said Tuesday that the 28-country bloc supports punishment for those behind the Aug. 21 attack.

"The EU stands united in condemning, in the strongest terms, this horrific attack which constitutes a violation of international law, a war crime, and a crime against humanity," Ashton said in a statement. "There can be no impunity and perpetrators of the attacks must be held accountable."

Russia, Syria's strongest international supporter, has signaled that it would block a referral to the international court.

Sergei Lavrov, Russia's foreign minister, said Tuesday that the U.N. report didn't convince him that Assad's forces were responsible for the Aug. 21 gas attack. Russian officials and the Syrian government accuse rebels of being responsible.

"The report proves that chemical weapons were used," Lavrov said at a news conference in Moscow after meeting his French counterpart, Laurent Fabius. "There is no answer as to where the chemical round was manufactured, whether it was produced at a plant or homemade."

He made it clear that he was dissatisfied with the U.N. report, and called for a more thorough investigation. He also repeated Russia's objections to any Security Council censuring Syria for use of weapons banned under international treaty.

The White House position on prosecution can be awkward for U.S. diplomats.

On Monday, the U.S. ambassador to the U.N., Samantha Power, told reporters that Sudanese President Omar Hassan Ahmed Bashir should forgo his plans to attend the U.N. General Assembly session in New York next week and instead surrender to the ICC, where he faces charges.

"We would suggest that given that he is under those charges, and that the ICC has indicted him, again, on genocide, war crimes and crimes against humanity charges, that it would be more appropriate for him to present himself to the ICC and travel to The Hague," said Power, a fervent human rights advocate.

But though she had just denounced Syria for "the largest mass casualty chemical weapons attack in 25 years," she was silent on how the Syrian perpetrators might be held accountable.

Besides Bashir, the International Criminal Court is prosecuting or seeking to prosecute other national leaders. It is demanding that Libya's new government hand over late leader Moammar Kadafi's son and his intelligence chief for trial. And in a case stemming from postelection violence in Kenya, the court has just begun its trial of a sitting government leader.

Frank Jannuzi, head of the Washington office of Amnesty International, which supports ICC consideration of Syrian use of chemical weapons, acknowledged that the case is unlikely to make it to the tribunal any time soon. But he said there are other benefits to international pressure for prosecution.

"It will make them think of the possible consequences of their actions, and maybe deter them from others," he said.

Even if prosecution isn't pursued now, the issue of poison gas use in Syria could come before the ICC or be handled through other judicial mechanisms in the future, as happened with war crimes cases related to wars in Somalia, the Balkans and elsewhere.

Jannuzi acknowledged that human rights advocates are worried that the United States and other world powers may be tempted to offer Assad amnesty if he allows inspectors to destroy his chemical weapons stockpiles, even though the culpability of the Syrian leader and his aides may be "painfully clear."

"Will the international community have the courage at that point to proceed with indictments, or will the goal be sacrificed to different political objectives?" he said. "They will face that question."

At the moment, some strong advocates of prosecution acknowledge that they are stumped on the best way forward.

Ban, in releasing the U.N. report Monday, described the Aug. 21 attack as a "war crime," and insisted that "there must be accountability" for any use of chemical weapons.

Asked how the world should proceed to ensure accountability, he replied, "I do not have a clear answer at this time."

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