While innocent people are massacred in Syria day after day, members of the UN Security Council are lulled into inaction. They think they can do nothing to uphold the law when faced with prospective vetoes from Security Council members Russia and China, both friends of Bashar al-Assad's government. But this is not an accurate understanding of the issues.
Russia and China have said they object to external military intervention against Assad; they don't reject existing international laws that prohibit mass murder. They also oppose negotiations focused on the removal of Assad, but they don't oppose negotiations to end the violence if both the government and its adversaries participate. They see U.S.-supported and even Arab League proposals as "unbalanced." Yet they don't want the violence, because it weakens their ally and increases the prospect of jihadists gaining a stronger foothold on Russia's southern flank.
If the Security Council were to ask the International Criminal Court (ICC) to investigate all alleged crimes in Syria -- Council authorization is the only way the ICC could have jurisdiction there -- this would not directly contradict the main objections from Russia and China. The goal of the investigation would not be the ouster of any government but rather enforcement of the law. It would examine alleged crimes by all parties engaging in violence. An impartial court would not interfere with Russian intentions to be on good terms with whoever governs Syria in the future.
Many anti-Assad governments say quietly that they don't want an ICC investigation and a possible indictment of Assad, because the prospect of a trial would make it more difficult to remove him from office. This is not a convincing argument. Assad has not indicated any willingness, however slight, to leave office without being forced out. He has rejected every overture from friend and foe alike. No government should oppose the possible indictment of top Syrian officials based on an illusion that non-indictment makes it easier to remove them from office.
Similar arguments were made, and discredited, in the former Yugoslavia in the 1990s. Many governments unofficially opposed the indictment of two notorious Bosnian Serbs, Ratko Mladic and Radovan Karadzic, because they believed that indicting them might interfere with the Dayton negotiations to end the war. Similarly, during the Kosovo war in 1999, critics of indicting Serbian president, Slobodan Milosevic, claimed that his future leadership was necessary to make a settlement possible.
These fears never materialized. Instead, peace and justice both advanced because of these three indictments. Karadzic and Mladic turned out not to be necessary for arranging a Bosnian peace; once indicted, they became pariahs and then fugitives because they did not want to stand trial. Not long after Milosevic was indicted by the International Criminal Tribunal Yugoslavia, Serbian forces agreed to withdraw. Indeed, although consequences do vary, history shows indictments of senior political, military, and rebel leaders can delegitimize those who obstruct conflict resolution and weaken them politically.
An ICC investigation could produce other benefits: It could focus international attention on the crimes and reaffirm the standards for legal conduct. It could clarify that it is the killing of innocent people that is the problem, not U.S. or Saudi or other opposition to Assad. And because the conflict is attracting Sunni extremists, and Al Qaeda is attempting to hijack the Syrian revolution, emphasizing the illegality of the killings would establish a foundation for discrediting all varieties of extremists, as much as any Syrian government official who violates the law.
Holding a Security Council vote on a referral of Syrian crimes to the ICC would sharpen the call for Russian and Chinese responsibility. They might not vote in favor of a Council request to refer all Syrian crimes to the ICC, but they might abstain -- which would allow the Court to proceed with authorization by other members. Russia and China would be more likely to abstain if this referral were combined with proposals for negotiating an end to the violence.
If Russia and China vetoed a referral, they would be appropriately embarrassed for refusing to uphold existing international laws prohibiting mass murder. In this case, the rest of the international community should together point out that these heinous crimes are subject to universal jurisdiction and that they will seek to enforce these laws, even without Security Council action, on behalf of the people who have been killed.
During transitions after revolutionary wars, instability and violent reprisals are often likely, so efforts to establish a rule of law should be instituted as soon as possible. Given its years of dictatorship, Syria probably will not be able to set up a domestic judicial system quickly enough to convey confidence to fearful Syrians that they will be protected from reprisals by impartial procedures to deter crimes. For this reason, it is all the more important for the ICC to play an important role now.
If the Security Council referred alleged crimes to the ICC, the Court's investigations and indictments would not suddenly end the war. But they would almost certainly reduce the number of people who will be killed in coming days. They might even open the way to negotiating a political settlement based on honoring the rights of all people in the conflict.
Robert C. Johansen is professor emeritus of political science and peace studies at the University of Notre Dame's Kroc Institute for International Peace Studies.