Assad is preparing his defence at The Hague

What will happen to Bashar al-Assad? This question is frequently raised in informal contacts now taking place within efforts to end the bloodshed in Syria. Intermediaries claim that President Assad would be amenable to stepping aside if he and his immediate family were guaranteed immunity from prosecution. Earlier this week the Syrian National Council (SNC), an umbrella organisation for opposition groups, came close to offering such a deal by suggesting a “Yemeni solution” to a crisis that has already claimed 20,000 lives. The phrase refers to a deal under which Yemeni President Ali Abdullah Saleh stepped down in favour of his deputy Abd Rabbu Mansour al-Hadi in exchange for immunity from prosecution. The Syrian version of the “Yemeni solution” would see Assad handing over to one of his vice presidents who would then form a transition government and hold free elections within a reasonable timespan. It is not clear where Assad might go under such a deal. Will he stay in Syria? Does the SNC have the authority to grant Assad, his mother, wife, and brother Maher immunity? The SNC has not yet answered those questions. Theoretically, the interim government, formed under one of Assad’s vice presidents, would be able to grant him immunity. However, such a decision would not bind future Syrian governments. Also, it would not be binding for the 139 nations that have signed the Rome Statute which created the International Criminal Court (ICC). The Rome Statute was signed in 1998 after a decade of negotiations involving over 70 countries. The statute gives the ICC the right to prosecute cases relating to crimes against humanity, war crimes, genocide and ethnic cleansing. So far 139 countries have signed the statute and 121 have ratified it as part of their national law. The hitch is that the ICC could only prosecute cases in countries that have adopted the statute, and Syria has not. In countries outside the remit of the ICC, prosecution could come with authorisation from the Security Council. Assad may hope that Russia that has supported him for so long might veto moves to bring a case against him. But would Russia want to antagonise the new Syria, and the bulk of the Muslim world, in order to please a lost pawn? To hedge his bets, Assad has been preparing his defence against charges that might be levelled against him. The interviews that Assad has granted to American, Iranian, German, and Turkish televisions in the past seven months offer a glimpse of his scheme. Assad’s defence seems to be based on four pillars. The first is that he is not informed about the atrocities. In the interview granted to the American network ABC, he uses the phrases “don’t know” and “haven’t heard” no fewer than 11 times. He claims that he has not seen the mass of documents sent to his government by the United Nations last December, detailing 225 cases of torture, rape and murder carried out by his security forces. In all legal systems, however, ignorance of the law is no defence and the Statute of Rome is no exception. This was the line used, without success, by Serbian despot Slobodan Milosevic and the Liberian dictator Charles Taylor. All that Assad needed to find out what was going on was to watch his own television to see people being killed by his henchmen. Assad’s second line of defence is to dissociate himself from the Syrian armed forces, blaming them as solely responsible for the atrocities. In the ABC interview he says: “They are not my forces, they are military forces belong to the government (Sic)”. “I don’t own them, so they are not my forces.” He harps on the same theme in his interview with the Iranian TV. “It is the commanders who decide how to deal with the situation,” he claims. The Syrian top brass has been uneasy about Assad’s efforts to shift the blame onto the army. Former Defence Minister General Ali Habib resigned after he demanded that, when it came to firing on civilians, Assad give orders in writing. His successor General Daoud Rajha is reported to have made similar demands days before he was killed in a bomb attack in Damascus. This week, Syrian Foreign Ministry spokesman Jihad Makdisi parroted Assad’s line with reference to chemical weapons. He said such weapons would only be used “under the generals’ decision”, thus exonerating the president in advance. That line, too, is hard to sell. Under the Syrian Constitution Assad is Commander-in-Chief which means that no rules of engagement could be adopted without his approval. A similar line of defence was used by Serbian leader Radovan Karadzic at the ICC. Nevertheless, the supremacy of political authority over the military is established in almost every judicial system. Syrian generals may well be liable to prosecution for their role in the carnage but that would not exonerate Assad’s as the supreme political authority. Assad’s third line of defence is that there is no war situation in Syria and that what we see is a campaign by foreign terrorist groups acting on behalf of powers angry at his alliance with the so-called “Resistance Front.” This is the theme he used in interview with Iranian and Turkish televisions. The problem for Assad is that he has weakened his case by declaring that Syria was facing “real war” just days before the International Red Cross decided that his country was in a state of civil war. Whether real war or civil war, the upshot is that the Geneva Conventions apply in Syria today. That means charges of war crimes could be brought against Assad. Assad’s fourth line of defence, best exposed in the interview with the German television, is to dismiss the UN, and implicitly the ICC, as a sham. “The UN is controlled by the United States and has no credibility,” he says. In other words, he would not recognise the authority of the ICC to try him even if the Security Council did trigger the procedure. That line has been used by former Ivory Coast dictator Laurent Gbagbo and the Sudanese President Omar al-Bashir. Assad risks finding himself in queer company. --- The views expressed by the author do not necessarily represent or reflect the editorial policy of Arabstoday.