Assad, Putin, and the smart move that Obama must make.

From warfare to lawfare.

The words used to describe Obama in countries in the Middle East plus Ukraine include “unreliable”, “skittish”, “weak in negotiations” and “feeble in foreign policy.”

Best evidence that these words have real meaning can be seen in the “words not action” policy of the Obama Administration when it comes to Syria.

On August 20, 2012, Obama said, “We have been very clear to the Assad regime but also to other players that a red line for us is seeing a whole lot of chemical weapons being moved around or utilized. That would change my calculus.”

Chemical weapons were moved around and utilized by the Assad regime and Obama did nothing.

On October 22, 2012, he said that “Assad’s days are numbered.”

I predict that Assad will still be in power after Obama vacates the White House. With the injection of Russia into Syria, it seems that it is Obama’s days that are numbered, not Assad.

The day after Obama met Putin at the UN, Russia launched an attack on US allies in Syria that are against the Assad regime. The result of this action was a meeting between Secretary of State Kerry and Russian Foreign Minister Lavrov in which Kerry pleased for “deconfliction.”

It is alleged that only an hour prior to the attack Russia told America to get their planes out of the skies of northern Syria. Ash Carter, the US Defense Minister’s response was to call this action “unprofessional.”

Kerry said he would discuss “the nature of the targets” with the Russians and that “talks will go on about other issues.”

As the brief press conference wrapped up, and as Lavrov walked away, he told the media “Don’t listen to the Pentagon.”

In the dangerous Middle East a favorite saying is “It’s best to be feared, not loved.”

Putin is fear and not loved, but he gets respect. Obama is neither feared nor loved. As one Israeli pundit put it to me, “Obama is a bully at home, but is a coward abroad.”

As proof of his statement he posed the following scenario; “If US-backed allies, or worse American soldiers who we are told by Obama are not in Syria, are killed by the Russians or others acting under the military control of the Russians what, if anything, would Obama do about it? Hit back? Highly unlikely. Complain? Absolutely. Big deal!”

Based in this scenario, how is the Obama Administration going to protect its allies when they are hit not by ISIS but by the Russians as they are right now? Maybe Kerry will come up with another new word like “deconfliction.”

It’s open season for contempt for America.

Ben Rhodes, the Deputy National Security Advisor said of Putin, “It’s hardly someone who is in a strong position” to which local comment is who is strong and who is weak?  He went on “Iraq didn’t work out for us. Syria will not work out for them” to which I say, “Ben! You want to bet on that?”

It was clear that Rhodes was speaking for his boss when Obama doubled down at a White House Press Conference on October 2, 2105, by saying Russia went into Syria “out of weakness.”

So here’s another prediction for you. I predict that Russia will be in Iraq before Obama leaves the White House. The signs are already there that ISIS will be the excuse for Russia to “assist” the Iranians fight Islamic State in Iraq.

Are these “weak” words US strategy, or policy? Does America have a policy or strategy? It certainly doesn’t look like it from here in the Middle East. By simply saying that ISIS and Assad must fall is effectual. Words don’t cut it and, in the tough worlds of real politics, foreign policy and global strategy, Obama projects utter weakness and incompetence.

In an election debate on October 22, 2012 with Mitt Romney who had called out Russia as being America’s worst threat going forward, Obama scoffed Romney by saying, “You said the biggest national security threat against America is Russia, not Al-Qaida, but Russia.” Three years later it is legitimate to ask, who was right?

Obama always backs losers, dangerous losers. Examples are the rebels in Libya who were against Gadhafi, The Muslim Brother hood in Egypt, Iraqi forces instead of the brave fighting Kurds, Syrian rebels. He is even schmoozing Iran. According to Middle East strategic experts, Obama is a proven chronic loser.

Ignoring Obama’s reasons for backing Syrian rebels and Assad’s appalling human rights record, Russia claims, with some justification, to be the only legitimate foreign force in Syria. Putin claims he was invited by the president of Syria to fight alongside the official Syrian army. Putin is using the old cliché that “He’s a bastard, but he’s our bastard!”

Using this excuse, Putin and Assad can claim that any other aircraft flying in sovereign Syrian air space will be considered enemy and liable to be shot down.

There is an expression which is applied to the killing and destruction of terrorist enclaves. It’s called “draining the swamp.”  America was not too keen to drain the Syrian swamp so Putin has taken it upon himself to be the exterminator.

The Obama Administration, alarmed that Russia said they would target ISIS and instead bombed their allies cannot shout too loudly about it because there is more than a whiff of hypocrisy about it.

America turned away as Turkey promised the Administration that it would target ISIS but has been heavily bombing the fighting Kurds in Iraq with American knowledge and silence. There is more than a suspicion that Turkey bought American silence by allowing the US to use Turkish air bases to fly sorties against ISIS.

What options are open to the Obama Administration?

As the clock ticks down to his departure, Obama is leaving the next US president an impossible legacy.

There remains only one avenue open to Obama if he wants to save face and out-maneuver Putin in Syria without enlisting military force.

If you don’t want to use warfare, use lawfare.

If America does not want to get into a military fight against Assad, it should think out of the box and apply “lawfare” against the criminal head of Syria by bringing war crimes charges against him to the International Criminal Court in The Hague.

It is undeniable that Assad has committed both humanitarian and war crimes. 

The evidence is at hand. There is no dispute that charges can be brought against Assad to the ICC at The Hague, and there are thousands of witnesses and compelling evidence to prove the case.

Assad is the central pawn in Syria upon which Russia stands or falls in its ambitions there. The only way that a US Administration that is loath to use military force to dislodge Assad from power is to bring him to justice for crimes against his own people.

With approaching 300,000 Syrians murdered by Assad, the international crimes are self-evident and a conviction can be brought quite convincingly.

If the Obama Administration claims it wants to bring down Assad for the sake of the people of Syria he is killing, this is the way to do it and, at the same time, trump Russia's latest moves in that country.

Since the US isn't party to the ICC statute it can't institute prosecutions against anyone. However, the ICC statute does enable the UN Security Council to institute proceedings. Therefore, the US should table a motion in the UN Security Council to institute proceedings against Assad.

This would place Putin in the indefensible position of protecting a designated international war criminal. Should he continue to support Assad, further heavy sanctions could be brought against Russia by the United Nations.

Of course, Russia could, and more likely would, veto such a move. But, if they did, they would be seen as protecting a war criminal. 

The smartest move would be to have a notable American individual, preferably a renowned international jurist, or an American-based human rights organization petition the International Criminal Court.

This is the move to which Obama can put Putin in a corner that it will be difficult to get out of and, at the same time, get rid of Assad to the benefit of the Syrian people.

Barry Shaw is the Senior Associate for Public Diplomacy at the Israeli Institute for Strategic Studies.