Between Bombing or Doing Nothing

09/04/2013 06:00 pm ET | Updated Nov 04, 2013

There is a global agreement regarding the problem: Crimes against humanity are being committed in Syria that could easily destabilize the entire region. There is also consensus that it is urgent to stop the violence. Should the world ignore the crimes the entire Middle East could become a battlefield setting a precedent for the use of weapons of mass destruction by terrorists anywhere in the world. However, the global community is divided on the solution to the problem. There may be an efficient and collective solution.

In February 2012 the UN Security Council and the Arab League appointed Kofi Annan to facilitate negotiations. But very soon the hardliners prevailed and eliminating the enemy became the only proposal. Eighteen months and 100,000 deaths later, six million people have been displaced and chemical weapons have been used; the world is now discussing military interventions.

But Russia and China will likely veto a UN Security Resolution authorizing the use of military forces. Even the Arab League, while demanding to the UN Security Council "to take the necessary measures," has fallen short of recommending the use of military forces. The UK Parliament refused to accept British engagement in military operations. The U.S. Senate Foreign Relations Committee approved a limited use of force.

In 2010, President Obama stated that "preventing mass atrocities is a responsibility that all nations share." His leadership and U.S. military power could be more efficient if they are supported by an international consensus.

What could be the terms of such an international consensus?

The Arab League is proposing an option that could be the foundation of an agreement: they suggest making those responsible for those crimes accountable before the international community. The Security Council took similar approaches previously and it could do it again. It created international ad hoc tribunals for the former Yugoslavia and Rwanda and it referred to the permanent International Criminal Court the Darfur and Libya situation. Those in Syria who order the crimes should be prosecuted. The International Criminal Court is ready to provide the independent judiciary required.

It could be effective. Leaders in Syria are ordering massive crimes to retain or to gain power. If they evaluate that they conclusively would end in a prison at The Hague, they will stop.

But to be an effective option for halting the crimes against humanity, the international justice path should be refined and improved. There should be a strategy integrating justice with military efforts and political negotiations, a strategy that was lacking in the past. Justice could be a way to promote behavior change without involving the UN Security Council in 'regime change.' Four conditions are necessary to make the international justice path successful.

First, it will be necessary to find a common position with Russia. Russia has used its veto power at the UN Security Council to oppose opening the door for military interventions and regime change, but Russia is not against justice. On the contrary, Russia, a founder of international justice at Nuremberg, signed the Rome Statute that created the International Criminal Court and voted in favor to provide jurisdiction to the International Criminal Court in Darfur and Libya situation. Furthermore, on July 2012 Russia presented a draft UN Security Council Resolution "[c]ondemning the widespread violations of human rights by the Syrian authorities, as well as any human rights abuses by armed groups" highlighting the importance to prosecute also rebels that committed crimes and "recalling that those responsible shall be held accountable."

Second, it will be necessary to find an agreement with China. The Arab League request can facilitate such agreement. China has always been consistent in taking into consideration the position of the regional organizations. International justice is not part of China's agenda but Beijing will harmonize its position if there is a general agreement. China's valuing of harmony and regional consensus is demonstrated in its decisions to abstain -- instead of vetoing -- the Security Council's referral of Darfur to the International Criminal Court and its vote in favor of a similar referral in the Libya case.

Third, the temporal jurisdiction should be thoroughly discussed by UN Security Council members. They have options. They can request that ICC investigations start from the beginning of the Syria conflict or establish a deadline in the near future that will trigger the jurisdiction of the Court. Such a timeframe could provide an incentive to begin a different style of negotiations to end the conflict.

Should the conflict effectively stop before the deadline, the national leadership could discuss adequate ways to promote justice for the past. It will be a challenge for negotiators to include accountability as a part of the political agreement but it will be the only guarantee that the leadership are not involved in new crimes.

Fourth, in order to have an impact, the referral to the International Criminal Court should include references on how to execute arrest warrants. Without enforcement, the threat of prosecution would be toothless. Security Council members should define the framework and political constraints of such arrest operations. In the case of the former Yugoslavia in 1996-1998, a coalition of countries spent months planning the modalities of arresting individuals during the conflict. This time the military should adjust and plan innovative arrest operations of criminals, in accordance with the limits imposed by the UN Security Council. The simple possibility to execute arrest warrants will change the tone of the negotiations.

"Never again" has been an unfulfilled promise. The Syrian conflict offers the world an opportunity: to find an innovative response to establish global order. Today's leaders could make our children safer. Or not.