A notable feature of the international response to Syria has been the limited discussion of employing the tools of international justice, namely the International Criminal Court (ICC). Because Syria is not an ICC member, granting the court jurisdiction would require the UN Security Council to act, as it did in Libya and Sudan. Activist groups such as Human Rights Watch have supported a referral, and the UN's top human rights official called for an ICC investigation, but diplomacy on the justice issue has been subdued.
This no doubt reflects the current impossibility of persauding Russia and China to accept an ICC investigation. But my sense is that it reflects something else as well: a Western reconsideration of the benefits of deploying international justice in the midst of conflict. Both the Libya and the Sudan referrals resulted in indictments for the respective head of state and senior ministers. And in both cases, the benefits have been murky, while the costs in terms of diplomatic flexibility have been significant. With the possibility of exile for Assad still circulating, I don't sense that the West is eager to foreclose any options.
There's nothing in this more cautious approach that is necessarily destructive of the push for international accountability. Once the Syria conflict has played out, the Council or, conceivably, the Arab League can initiate processes for investigating and meteing out punishment. What this staggered approach does undermine is the notion that justice must be a tool for managing ongoing conflict.
I've never understood why so many international justice advocates and human rights professionals are fiercely attached to the vision of justice as a tool for managing conflict in the first place. It's as if justice for its own sake is not enough; it must also be shown that pursuing justice always has salutary political and policy consequences: that it always deters atrocities and never backs indictees into a bloody corner; that it "delegitimizes" those indicted and never impedes diplomatic resolutions. These claims are all but unverifiable empirically. They are more expressions of faith than analysis. What's more, they are oddly consequentialist positions for folks who pride themselves on principled activism.
More: Astute reader Don Kraus points to another reason that the United States might be wary of referring Syria to the ICC. "The US
will be reluctant to pursue this option because a Syrian referral would
include the Golan Heights, which would put territory under Israeli
control within the Court’s jurisdiction."