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Averting Another U.S. Foreign Policy Disaster

Is there a way out of the box President Obama has built for himself, while strengthening the fight against international despots?

September 10, 2013

U.S. President Barack Obama. (Credit: Pete Souza - White House)

So far, the public debate in the United States on what to do about Syria has been largely limited to an almost childishly binary proposition: “Bomb Syria — or do nothing.” President Obama has taken a first step out of this box by correctly throwing the decision on Syria to the U.S. Congress, as required by the U.S. Constitution.

This leaves his hawkish Secretary of State John Kerry and UN Ambassador Samantha Power to play “bad cop” as they relentlessly brandish the grisly videos of use of chemical weapons and declare there are no other options to a military strike.

The opening after Kerry’s off-the-cuff remark that a strike might be avoided if Assad agreed to turn over his chemical arsenal to international control was quickly taken up by Russian Foreign Minister Sergey Lavrov. This was followed by an encouraging response from Syrian Foreign Minister Walid al-Muallem and an endorsement by UN Secretary General Ban ki-Moon.

Now President Obama has a way to put the military strike on hold. But should this initiative fail, there remains a strong possibility — given the grave doubts asserted by many, including military officers and other leaders — that Congress will answer President Obama’s request with a resounding “no” vote.

As a constitutional legal expert, Obama must acknowledge such a “no” vote as constitutionally binding. If he goes ahead anyway, he may face an effort by many on the right, fomented by racist opponents, to impeach him on such constitutional grounds.

Barack Obama is already “the loneliest man on the planet,” as Michael Hirsh writes in The National Journal. He managed to obtain little support after his appeal to the G-20 countries in St. Petersburg. His military strike plan is also opposed by the Pope and the UN Secretary-General Ban Ki-moon.

The opposition cites the illegality of any unilateral strike and the multiple, unforeseen consequences which may cause more deaths and widen the violence to the whole region. This view was articulated, for example, by former U.S. ambassador to Syria, Edward P. Djerejian on C-SPAN, on September 9, 2013.

Even a Bloomberg BusinessWeek article doubted that a U.S. strike would change the course of Syria’s civil war, while its columnist Charlie Rose interviewed Assad on his PBS show, broadcast U.S.-wide on September 10, 2013.

Under those circumstances, President Obama’s best course of action is now to revert to his legal expertise, override the hawks around him and instead call for Bashar al-Assad and his brother Maher to be brought before the International Criminal Court (ICC) in The Hague and indicted as war criminals.

Already, 64 countries have called on the UN Security Council to refer the case of Syria to the ICC, including six of its members: France, Britain, Luxemburg, Argentina, Australia and South Korea. Russia so far has opposed the referral to the ICC as “ill-timed and counterproductive.”

Yet, as Edward Bernton has pointed out in The Globalist, the ICC is a potent alternative to military action. Despite the difficulties, the ICC alternative is the best option to pursue. This move is also supported by many, including my colleague Theodore Gordon, co-founder of the Millennium Project State of the Future reports.

Trivial as it may sound to some, but ICC referral is a real sting. Typically, such dictators rule the way they do in order to garner, or protect, the financial assets that allow them to live like big wigs. And that very much includes the freedom to travel.

To get that truly stinging operation launched, President Obama can outline the legal case that makes referral to the ICC the most consistent with international law and the treaties against use of chemical weapons and the earlier toll of 100,000 deaths in Syria.

Obama can cite the earlier mistakes of the George W. Bush Administration which refused to ratify the ICC, along with China, Iraq, Israel, Qatar and Yemen. In fact, worldwide opposition to the Iraq War led to many calls for President George W. Bush to be indicted before the ICC. The decade-old ICC will continue to face opposition, especially now in Kenya, where the new president, Uhuru Kenyatta, is facing ICC indictment.

President Obama, by supporting an indictment of Assad before the ICC, could help buttress the vital role of the ICC and, in one sweeping maneuver, also move to redeem the shameful U.S. previous opposition, announcing that he would now support U.S. ratification.

This might give many members of Congress, including Republican ones, a way out of the same box Obama is in. Their voters want them to oppose a military strike, but are in favor of doing “something.” Under those circumstances, accepting the ICC is a very promising alternative.

Rather than voting “no” to military strikes, they could vote “yes” to referring the Syrian case to the ICC. Even if the UN Security Council continued blocking such a referral, the ICC chief prosecutor Fatou Bensouda has discretion to bring such an indictment herself.

If Obama signaled his support for the ICC and to indicting Assad, it is possible that the UN Security Council would refer the case to the ICC. How could President Obama use this as a sensible backtrack from the intellectually bankrupt “bomb or do nothing” position?

He could cite the U.S. Constitution which gives the Congress the power to declare war — buttressing his legal position in backing the decision on Syria to Congress and signaling that he would abide by their decision.

While some political strategists would be aghast at this “loss of face” and by the diminished power of the presidency, as well as lessened credibility of the United States as the world’s superpower, President Obama has a powerful counterargument.

For a country that has been so keen to go out into the world seeking to bring democracy to other places even if by military means, it is high time to change its tune. The United States must demonstrate once and for all that it is indeed a functioning democracy.

It must urgently say goodbye to past practice, which made it look like an elite-driven political machine that merely went through the motions of democracy, readily abandoning the will of the people whenever it is found to be inconvenient for leaders’ larger designs.

Abiding by the will of the people and the Congress, President Obama could stay true to his own legal, constitutional expertise and usher in a historic paradigm shift worldwide.

In the future, political leaders might heed their electorates, as did Britain’s Parliament in voting “no” on bombing Syria. Politicians might be deterred from military adventures and more respectful of human rights.

History might record Obama’s change of direction not as “backing down,” but as rising above the mindless use of military force in situations that require political and diplomatic solutions such as in Syria now.

Over the longer term, other critical steps need to be taken — none more important than ending the world’s reliance on petroleum. This will help cut conflicts in the Middle East down to size. Thankfully, the transition to cleaner, green, knowledge-rich technologies of solar, wind, efficient renewable energy has gotten underway in earnest.

$5.2 trillion has already been invested privately and ratified by 191 countries at Rio+20. Another future is indeed possible, provided we decentralize energy sources in tandem with political power.


The U.S. debate about Syria has been limited to an almost childishly binary proposition: "Bomb Syria — or do nothing."

ICC referral is a real sting. Dictators rule to live like big wigs. That very much includes the freedom to travel.

By supporting a move to indict Assad before the ICC, Obama could strengthen the fight against international crimes.

By announcing support for ratification, Obama could make up for the U.S. previous shameful opposition to the ICC.

The U.S. must end an era when an elite-driven political machine merely went through the motions of democracy.

When political leaders heed their electorates, they might be deterred from military adventures.