For months now, it has been clear that no peaceful, even satisfactory, resolution of the conflict in Syria is possible without external intervention. Paradoxically, too many Syrian civilians have been tortured, wounded, and killed to stop the demonstrations seeking the ouster of President Bashar al-Assad. The victims’ families, friends, and neighbors simply will not accept the Assad regime’s continuation in any form. So what will happen?
One possibility is that the regime will greatly escalate the killing. If it kills ten or 20 times as many as have died thus far, perhaps it will succeed in creating so much terror that the protests will stop. Though this is far from certain, it is hard to imagine that maintaining the current level of violence will make Syrians bow to the regime, given that so many have refused to do so up to now.
Another possibility is that Assad, his family, and his top associates flee the country. But, even in that case, their flight probably would not end the strife. The Syrian armed forces have so much blood on their hands that those who have suffered losses or sympathize with the victims of repression are sure to demand that the killers be held accountable. Without a mechanism in place to see that justice is meted out in a fair and orderly way, Assad’s departure, by itself, will not end the violence.
If an even greater catastrophe than what is now taking place is to be avoided, external intervention is essential. Yet there are many good reasons not to intervene militarily – including the undesirability of doing so again so soon after NATO’s intervention in Libya, which would create the impression that such actions are becoming routine.
Indeed, many in the Arab world questioned even the Libyan intervention, because the United States-led invasion of Iraq years earlier had discredited the use of military force against a dictator. And, of course, it is difficult to discern who would contribute military resources for intervention in Syria, how great a commitment would be required, and how to ensure the least possible additional loss of life.
One way to intervene with the aim of securing legitimacy and minimizing further bloodshed would be for the Arab League to establish a tribunal modeled on the International Criminal Court (ICC). Such a tribunal would have Arab judges, prosecutors, investigators, and defense attorneys, and it would conduct its proceedings in Arabic. It would have jurisdiction over the crimes that are spelled out in the ICC’s statute, and it would operate in accordance with the ICC’s procedures.
The ICC itself does not have jurisdiction over Syria, because the country is not a party to the treaty that established and governs the Court. Moreover, it seems likely that Russia, perhaps joined by China, would use its veto power in the United Nations Security Council to block referral of Syria to the ICC.
Though it would take time for an ad hoc Arab tribunal to be formed and to reach the point at which it could issue indictments, Syrian military commanders would immediately be put on notice that they could face prosecution for their actions against protesters. Indeed, the Arab League could strengthen the incentive to end the killings by determining that priority would be given to prosecuting those who commit additional crimes after the adoption of a resolution to establish such a tribunal.
Experience over the past two decades with ad hoc tribunals in other parts of the world demonstrates that they have a good record in apprehending those whom they indict. When the UN established the International Criminal Tribunal for the Former Yugoslavia in 1993, its many detractors claimed that it would go nowhere because it could not compel the appearance of defendants. In fact, however, the ICTY has succeeded in bringing before it every defendant that it indicted from all parties to the post-Yugoslav wars of the 1990’s.
It is impossible to predict that establishment of such a tribunal, whether by the Arab League or some other international body, would suffice to halt the bloodshed. More may be required. But setting in motion a process to bring the perpetrators of heinous crimes to justice seems appropriate in its own right. And it seems worth trying such an approach before attempting to fight violence with violence.
By Aryeh Neier, president of the Open Society Institute and a founder of Human Rights Watch, and the author, most recently, of Taking Liberties: Four Decades in the Struggle for Rights.