The two and one-half year conflict in Syria has resulted in millions of refugees/displaced persons and more than 110,000 deaths. Recently, more than 1,000 civilians have been killed in a poison gas attack attributed by some to the Al-Assad regime, and by others to rebel forces―and the world waits for dispositive proof. Given the differing views of the US, Russia and China (all permanent members of the UN Security Council with resolution veto powers), it is unlikely that the UNSC will authorize punitive military measures against the Al-Assad regime. However, members of the UNSC may well agree to employ the International Criminal Court (ICC) as a legal avenue for the impartial investigation of war crimes and crimes against humanity by any party to the Syrian conflict, with the possibility of the ICC indicting those primarily responsible.
The ICC is an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes. Currently, 122 countries (but neither Syria China, Russia nor the US) recognize the Court’s jurisdiction. Among the punishable crimes under the ICC Statute are the following: depriving civilians of access to food and medicine; extensively and wanton destruction of property, not justified by military necessity; torture or the intentional infliction of severe pain or suffering; intentionally directing attacks against civilians not taking direct part in hostilities; intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals; employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices.
According to media accounts, both pro- and anti-government forces in Syria have committed many of these crimes. An independent, unbiased ICC investigation can assign blame to the guilty parties regardless of their political motives.
There are several ways the ICC can initiate an investigation and indict suspects. One of them involves the UNSC. Acting under Chapter VII of the UN Charter, the UNSC can refer situations which threaten or disrupt international peace to the Court for investigation. Because the Court would be acting pursuant to Security Council Chapter VII authority, there would be binding obligations on all UN member states (including Syria) to comply with court orders for evidence or the surrender of indicted persons. Court orders could be enforced by the Security Council in the form of imposed embargoes, the freezing of assets of leaders and their supporters, etc.. Because all Security Council members agree that the wanton killing of civilians and the use of poisonous gas violate international legal norms, they are more likely to agree to ICC involvement than to punitive military actions.
To date, the Security Council has authorized the ICC to investigate the situations in Darfur, Sudan and in Libya – none of which is a part to the ICC Statute. While an ICC investigation may not end the conflict, it may well cause a reduction in war crimes. It may also identify and indict those guilty of grave breaches of humanitarian law. Such persons would become subject to international arrest warrants and would be regarded as persona non-grata internationally.
An ICC strategy should be pursued in conjunction with robust diplomacy and peace negotiations involving the key Syrian parties, the Arab League, the European Union, Turkey, Russia, Iran and the United States. Certainly, such a combined approach is more appropriate for a Nobel Peace Laureate President than one involving cruise missiles. In the long run, it may be much more effective.