But others say international judicial action can have an impact, and they point to the Balkans war of the 1990s as an example. In a statement backing ICC referral, Human Rights Watch (HRW) said the record in cases like the Balkans “confirms that criminal indictments of senior political, military, and rebel leaders can actually strengthen peace efforts by delegitimizing and marginalizing those who stand in the way of the conflict’s resolution.”
One roadblock to ICC referral is that Syria is not a signatory to the treaty that established the international court. That means the Security Council would need to make the referral for the international court to gain jurisdiction over crimes committed in the Syrian conflict. The Security Council has been paralyzed by divisions over the fate of President Assad’s regime, with permanent council members Britain, France, and the US saying Assad must step down and Russia and China resisting – to the point of vetoing – any attempts at action on Syria.
Supporters of a referral hold out hope that China and Russia, which profess not to be taking sides in the conflict, could be persuaded that ICC action would not specifically target Assad but would be aimed at war criminals on all sides. “A referral would be unbiased and give the ICC jurisdiction to investigate crimes committed by the government and the opposition,” says Balkees Jarrah, HRW’s international justice counsel. The point would be to “send a message” to all sides that “abuses could land them in a prison cell in The Hague.”