Is prosecuting Assad a better option than Syria strike?

As U.S. President Barack Obama continues to drum up support abroad and at home for a military response to Syria's alleged use of chemical weapons, some diplomats and policy experts say the crisis calls for a legal solution rather than a military one.

Charging Assad at the International Criminal Court is still a viable response to the Syria crisis, some observers say

A demonstrator in San Francisco chants in opposition to the proposed military intervention against Syria, days after U.S. President Barack Obama said he was willing to take military action against Syria even without allied support. (Stephen Lam/Reuters)

As U.S. President Barack Obama continues to drum up support abroad and at home to "punish" Syrian President Bashar al-Assad for his alleged "brazen" use of chemical weapons, some diplomats and policy experts say the crisis calls for a legal solution rather than a military one.

Although Obama discussed Syria with Russian President Vladimir Putin on Friday, there’s a widening rift between countries supporting the U.S.-led plans for a military strike on Syria and those that are opposed to it.

Tony Smith, a political science professor at the University of California Irvine, who has written extensively on war crimes trials, told CBC News that charging Assad at the International Criminal Court is a better option.

"Courts matter, law matters," said Smith. "This is the exact right time to have the ICC step up."

How can the ICC stop the Syrian conflict?

If the ICC gathers enough evidence to prosecute Assad, they would hold a trial in his presence, allowing him a chance to defend himself.

On U.K. non-military options in Syria

After the U.K. parliament rejected a motion to support a military strike in Syria, British think tank Oxford Research Group wrote this comment on British Prime Minister David Cameron's response to legal action on Syria through the ICC:

"When asked on 29 August if he agreed that Assad should be prosecuted at the International Criminal Court (ICC), David Cameron replied curtly that these processes take time.... The UK should take a breath, step back from punitive reaction and recommit itself to a multilateral, inclusive and legally rigorous approach to resolving the war in Syria and its many affiliated regional conflicts. No other form of intervention will effectively protect the lives and rights of Syrian civilians either in the current war or the difficult peace that must follow."

"He should be tried for his crimes in a court of law approved by most of the world," said Smith, adding, "so it isn’t another case of the U.S. beating up another country"

Though they would be unable to arrest Assad upon indictment, since the ICC does not have an enforcement arm, Smith said the short-term positive benefit would be that Assad would have to rein in the violence so he could take the position that the prosecution is inappropriate.

Recently, the West was exposed to gruesome execution videos smuggled out of Syria, reportedly showing opposition fighters swearing revenge while executing Syrian army soldiers in April 2013.

As evidence mounts against both sides in the 2½-year-old civil war, ICC action "would send the message that seeking justice for victims of crimes against humanity has not been forgotten," University of Waterloo Professor Andrew Thompson told CBC News. Thompson is an expert in the field of international human rights, civil society movements, and fragile states.

Is there a precedent to a case like Syria?

In 2009, Sudan’s President Omar al-Bashir became the first sitting head of state to be indicted by the ICC for genocide, crimes against humanity, and war crimes. He mocked the court, calling it the "new face of colonization," as he travelled freely without detention in countries that are not signatories to the ICC.

However, the ICC ruling did have an effect on Bashir’s actions, as he eventually allowed a secessionist South Sudan the right to vote for independence.

"The only thing that changed — from violent oppression to not even a verbal opposition —  was the indictment," Smith said.

"Maybe there were other reasons," said Smith. "But there is a correlation in events that is difficult to argue with."

The Bashir precedent shows that the ICC could influence Assad to stop persecuting opposition groups, and it may even lead to a vote in Syria, as it did in South Sudan, Smith argues.  

Who is responsible for reporting Syria to the ICC?

The ICC can investigate Syria upon referral by the UN Security Council.

Syria is not party to the 1998 Rome Statute that established the ICC but it can function as a "court of last resort" for nations like Syria, where the justice system has collapsed or is unable to hold trial, Smith said.

Moammar Gadhafi, for example, was indicted for crimes against humanity, although Libya is not party to the ICC.

"Is the action complained of a violation of international law? Like Libya, for Syria, the answer is ‘yes,’" said Smith.

In this case, potentially anybody affected by the conflict can petition the ICC prosecutor to investigate, although that avenue would be relatively new territory for the ICC.

Why hasn’t the UN Security Council referred Syria to the ICC yet?

In a word, Russia. In January 2013, Switzerland submitted a proposal signed by 58 countries, petitioning the Security Council to refer the Syria crisis to the ICC. The proposal was rejected behind a closed-door meeting, and Russia said in a statement, "We view this initiative as untimely and counterproductive to achieving today's main goal — an immediate end to the bloodshed in Syria."

[IMAGEGALLERY galleryid=4967 size=small]

University of Toronto criminology professor and Russian politics expert Matthew Light says Russia would not want to approach the ICC because any investigation of war crimes would "undermine Assad and might ultimately embolden the U.S. and others western countries to step up their military support for the rebels, or even create a justification for an international arrest warrant against Assad."

Russia’s strategy in the UNSC has also been to block resolutions criticizing or restraining Syria, Light explained.

Is there any chance Russia would agree to an ICC investigation?

After the reported chemical weapons attacks in August, Russia has repeatedly challenged the U.S. to produce "convincing" evidence that the regime is responsible for atrocities.

UC Irvine’s Smith says it would be a clever diplomatic move now for Russia to refer the case to the ICC, thereby delaying action to protect their interests, and allowing an independent body to gather evidence on both sides of the conflict.

"If I were an American diplomat I would be pushing Russia to make this argument," he said.

What are the drawbacks of referring Syria to the ICC?

Time. In an already prolonged war, another six to eight months of investigation and hearings before a final indictment could mean many more lives will be lost in the interim.

To put things in perspective, UN High Commissioner for Human Rights Navi Pillay has been calling for the Security Council to refer Assad’s case to the ICC for "crimes against humanity" since December 2011. At the time, the death toll was 5,000 people. Today, the toll has surpassed 100,000 people, and over seven million people have been displaced inside the borders as well as into neighbouring countries.

In February 2013, months before the chemical warfare reports emerged from Ghouta, a Damascus suburb, Pillay renewed her call to the council, telling them that referring Syria to the ICC "would send a clear message to both the government and the opposition that there will be consequences for their actions."

Do any other complications arise from an ICC referral?

London-based European Council on Foreign Relations policy expert Anthony Dworkin told CBC News that apart from being a lengthy process, the ICC intervention could further antagonize Assad.

"An ICC referral is a big deal," said Dworkin. He said a criminal investigation would make Assad less inclined to reach a diplomatic solution through UN talks. 

"A military strike is a bigger deal," Dworkin added, and said a political transition between the regime and opposition will bring more lasting peace to the region.

But Smith said if the world signals to Assad that there’s no scenario in which he'll ever be indicted for war crimes, he can safely assume that nothing’s going to happen, and he might just sit tight while the criticism dies down so he can continue his regime.