Many western officials privately concede that getting Syrian dictator Bashar Assad to surrender power probably means letting him retire to a comfortable private life under tight security in Russia or Iran. | AP Photo Cozy retirement for Assad looks likely as Syria peace talks convene Diplomats concede the Syrian dictator is unlikely to face war crimes charges any time soon.

When Secretary of State John Kerry convenes Syria peace talks in New York on Friday, the fate of Syrian dictator Bashar Assad will be a main topic of debate. But despite widespread agreement that Assad has committed shocking war crimes—and a new report chronicling the atrocities—U.S. officials say the question of bringing Assad to justice is off the table for now.

Western allies have reached a similar conclusion. While hoping Assad might face a criminal trial one day, they concede that bringing Assad to justice is a lower priority than ending the carnage in Syria as soon as possible.



"I haven't given up on the idea," British Foreign Secretary Philip Hammond said in a recent interview. "If there's justice in the world, Bashar Assad will end up in the Hague. Whether that's going to happen is another question. The moral answer is to end the killing now."


Many western officials privately concede that getting Assad to surrender power and leave Damascus probably means letting him retire to a comfortable private life under tight security in Russia or Iran, his chief foreign patrons.

Human rights advocates caution against such thinking. "It's a false choice," said Stephen Rapp, who served until August as Obama's Ambassador-at-Large for War Crimes Issues. "The idea that you can go forward [with a peace settlement] without accountability is impossible."

Rapp concedes that bringing Assad and his circle to trial will be extremely difficult and perhaps implausible in the near term. The Syrian leader is unlikely to accept a deal that puts him before an international court. And as the Islamic State has gained power and alarmed the west, Assad's leverage has only grown.

In recent weeks, for instance, the U.S. appears to have also softened its position on when—and even whether—Assad must surrender power. Obama has often said that Assad must step aside, but after a meeting with Russian president Vladimir Putin in Moscow on Wednesday, Kerry said that the U.S. is "not seeking so-called regime change," and that "Syrians will be making decisions for the future of Syria." (The State Department denies that Kerry's comments marked a change in U.S. position: “Nobody's given up on the notion that Assad has to go,” said spokesman John Kirby.)

“It’s hard enough to get rid of him as it is,” conceded a former Obama administration official. “If he was under indictment there would be even less of a chance.”

At one recent meeting on Syria, Arab government officials told their western counterparts that they don’t consider trying Assad to be important. “The Arabs said, “That’s the least of our problems,” according to one western source. “If he will agree to go, we will find a place for him.”

Diplomats from more than a dozen countries backing factions in Syria's civil war are meeting in New York on Friday for the latest round of peace talks aimed at ending the conflict, which has killed more than 250,000 people and enabled the rise of the Islamic State, also known as ISIS or ISIL. Two previous meetings were held this fall in Vienna.

The meeting comes two days after Human Rights Watch released a new report chronicling atrocities committed by Assad's regime. The report is based on more than 28,000 photos of hundreds of people who died in Syrian government custody, often after torture, smuggled out by a former Syrian official known only as Caesar. The report calls for the international community to investigate and prosecute crimes against Syrian officials.

Since the beginning of the Syrian uprising in early 2011, Assad's forces have also conducted indiscriminate bombing of civilian areas and used nerve and chlorine gas against non-combatants. A May report from Amnesty International found that the regime’s use of barrel bombs—canisters filled with explosives and metal parts dropped from helicopters—had killed 11,000 civilians since 2012 in a campaign of “sheer terror and unbearable suffering.”

It's not that Obama officials take Assad's crimes lightly. After France introduced a May 2014 U.N. Security Council resolution seeking action at the International Criminal Court (ICC) in The Hague against Assad and his associates, Russia and China vetoed the measure. (Russian President Vladimir Putin is a strong ally of Assad, and both Moscow and Beijing are skeptical of western notions of international law and justice.) U.N. ambassador Samantha Power, a former journalist who crusaded to raise awareness of war crimes, said Assad was complicit in "the worst horrors of our time and called the Russian and Chinese actions "indefensible."

Officials say that means any trial of Assad and other Syrian officials would likely require creating an independent tribunal, because a U.N. Security Council referral is needed to try Syria cases at the ICC. The goal would be proceedings like those against the former Serbian dictator Slobodan Milosevic for war crimes committed in the Balkans in the 1990s. Milosevic was arrested by Serbian authorities in 2001 after he left power, and subsequently transferred to the Hague, where a U.N.-managed tribunal tried him until he died in custody in 2006.

Milosevic's conviction was hailed as the most important international trial since Nazi leaders were prosecuted at Nuremberg, and human rights advocates celebrated it as a deterrent against future war crimes by heads of state. But thanks in part to Russian and Chinese resistance, the Hague has staged no major trials since then.

Even as Kerry tries to broker peace talks between Assad and moderate Syrian rebels, officials in the State Department's Office of Global Criminal Justice are working behind the scenes to compile a dossier of evidence against Assad that might be used to prosecute him. But if Assad is spirited to Russia or Iran, officials say the odds that he will ever be turned over for a prosecution are low.

Rapp said that's a problem to confront later. In the near term, Kerry must ensure that any Syria peace agreement includes clear language establishing a "process of justice." "That does not necessarily mean that justice goes right away to the top, and that doesn't mean that people don't exit stage right and leave and maybe get pursued later," Rapp said.

"But you can't have an agreement that says they have a get-out-of-jail-free card and a permanent position of immunity."

In August of 2013, as he prepared to conduct air strikes against Syria, Obama said Assad's regime must be held "accountable" for its use of chemical weapons. "If we won't enforce accountability in the face of this heinous act, what does it say about our resolve to stand up to others who flout fundamental international rules?" Obama said.

But Obama called off the air strikes after he met political resistance and reached a deal with Russia to remove Assad's chemical arsenal. Since then, Assad's regime has continued to attack civilians with chlorine gas.

The view that Assad should face justice—or even be forced from power—is not unanimous in American politics. At Tuesday night’s Republican debate, Texas Senator Ted Cruz criticized Obama for insisting on Assad’s exit. "If we topple Assad, the result will be ISIS will take over Syria and it will worsen U.S. national security interests," Cruz said.

On the other side, even some critics of Obama's Syria policy who feel the U.S. has not done enough to dislodge Assad argue that throwing him in the docket might not make sense.

"I don't think I take a back seat to anybody on defending human rights in Syria," said Robert Ford, Obama's former ambassador to Damascus and a proponent of more aggressive support for Syria's moderate rebels. "But even I would say that if it would end the war six months earlier and save 15,000 lives, I think I would look at it."

Correction: An earlier version of this story incorrectly stated that Slobodan Milosevic was tried by the International Criminal Court. He was tried by the International Criminal Tribunal for the Former Yugoslavia. It also stated that the ICC is overseen by the United Nations. It is not. The story also reported that Milosevic was convicted. He died in custody before a verdict was reached.