Syria war crime perpetrators could face justice in The Hague

By Jennifer Trahan, Special to CNN

Editor's note: Jennifer Trahan is associate clinical professor at the Center for Global Affairs at the NYU School of Continuing and Professional Studies and chair of the American Branch of the International Law Association International Criminal Court Committee. The views expressed are her own.

With a death toll that has passed 40,000 and still climbing, there can be no doubt that the situation in Syria should end up before the International Criminal Court, which was established to try the worst cases of genocide, war crimes and crimes against humanity where national courts are unwilling or unable to act. The international community has been waiting for the U.N. Security Council to refer the situation to the Court, as the Council is permitted to do under the 1998 Rome Statute that established the Court. Unfortunately, the Council votes are not there.

But another path to the ICC is now emerging. When the al-Assad regime eventually falls, as looks increasingly likely, a new Syrian government will be able to ratify the Rome Statute. That will create jurisdiction over crimes committed in Syria.

How? A new Syrian government will be able to join the International Criminal Court and can take jurisdiction back to July 1, 2002 -- the first date the court's jurisdiction can start from. Thus, there is a clear path by which top-level perpetrators of the current crimes might find themselves facing justice in The Hague.

Justice in The Hague, however, would apply to all sides, meaning the actions of the opposition forces would also be covered.

It is too late to hope that the al-Assad government heeds calls to deter atrocities being committed by Syrian forces. But while large-scale crimes have clearly already occurred, use of chemical or biological weapons would raise criminality to a new level that would invite high level prosecutions. Use of such weapons could constitute both a war crime and, if targeted against civilians as part of a widespread or systematic attack that is committed pursuant to a plan or policy, a crime against humanity as well.

While the Security Council has marginalized itself in failing to systematically refer mass atrocities to the ICC (it referred the Libya situation after far fewer fatalities), it may not be needed for the creation of ICC jurisdiction over the Syrian situation.

Given the clear path that now exists, all actors in the conflict (if they weren't doing so before) should now gauge their actions appropriately.

A new Syrian state would, of course, have the option to prosecute such crimes itself and not go to the ICC. Iraq tried Saddam Hussein before the Iraqi High Tribunal because Saddam's crimes predated what the ICC's jurisdiction would allow. But domestic court prosecutions have a very mixed track record in trying individuals for mass atrocities. The Iraqi prosecutions, for example, were hardly a success, verging on the vengeful in their failure to adhere to due process.

To risk any chance of a repeat of what happened in Iraq, the International Criminal Court looks like the clear way forward.