(Jeff J Mitchell/Getty Images)

A hot topic for many of the best and brightest in the field of international criminal justice is the ongoing conflict in Syria. Is it possible for justice to be delivered for the commission of atrocities – on both sides of the war? If so, what is the best way forward?

Much of the debate on justice in Syria unfortunately suffers from a rigid, all-or-nothing approach. Either perfect justice must be achieved or absolutely no justice should be pursued; either the international community gets the International Criminal Court (ICC) involved via a UN Security Council referral that funds the Court’s work and protects it from political manipulation or… well, nothing. As a result, attempts to elaborate how to achieve justice in Syria have marginalized middle-ground options on the grounds that they aren’t perfect or exactly what should happen in an ideal world. The perfect solution really has become the enemy of any solution.

But, of course, there are middle-ground solutions. They deserve more attention than they’ve received and key states involved in the conflict should weigh the costs and benefits of each. Here’s three worth talking about:

A Conditional Referral

I previously wrote about this concept but it remains just as, if not more, pertinent today than ever. Interestingly, Former ICC Prosecutor Luis Moreno-Ocampo has endorsed the idea.

A conditional referral would entail a legal guarantee from the Security Council that it would refer the situation in Syria by a given, future date. The parties to the conflict would then have a clear timeline for when they needed to end hostilities and cease their commission of atrocity crimes. If they did not, the Security Council would be legally ‘locked-in’ to issuing a referral of the situation to the ICC.

There are significant problems with this proposition, especially because it risks placing the ICC at the complete and utter whim of the Security Council member-states. As a result, it could severely undermine the independence and thus legitimacy of the Court. For many, it has consequently raised an uncomfortable question: is the pursuit of justice in any one context worth undermining the Court’s long-term viability?

A Free Syrian Army fighter in Damascus(Goran Tomasevic/Reuters)

A Referral-Deferral

The concept of a referral-deferral hasn’t received much attention (in fact, I can’t find anything written about it to date). Still, it is an interesting proposition that was first proposed to me by Jason Ralph, who has written extensively on the legitimacy costs of UN Security Council deferrals.

The proposal is, in essence, an adaptation of a conditional referral. The Security Council would pass a resolution referring the situation in Syria to the ICC. It would then immediately pass a resolution deferring any investigation and prosecution in Syria for a period of 12 months. The belligerents in Syria would thus have one year to the resolve the war or to demonstrate that they were on a viable path to doing so and thus deserved a second 12-month deferral. Importantly, a referral-deferral might provide an incentive for the parties to negotiate an accountability mechanism that would satisfy the Court’s complementarity regime and therefore make any subsequent investigation unnecessary.

Of course, there are those who believe that a deferral under Article 16 is anathema to the ICC despite the fact that it forms an integral part of the Rome Statute. But a referral-deferral does have some advantages. Unlike a conditional referral of Syria to the ICC, a referral-deferral would put the onus and responsibility for matters of justice and accountability on the Security Council member-states and not the ICC.

An Ad-Hoc Tribunal 

The idea of an ad hoc tribunal gained traction after a number of high-profile academics and practitioners released a draft statute of a tribunal aimed at preventing Syria becoming a post-conflict “basket case”. There have been important voices, like Dov Jacobs, who expressed disappointment with the effort. But the broader outlines of the idea an ad hoc tribunal deserves more attention.

Still, for some reason the idea of an ad-hoc tribunal has been treated as an affront and an attack on the ICC. Others suggest that it simply can’t deliver justice. For example, Richard Dicker, Human Rights Watch’s Director of International Justice and Human Rights, recently told US lawmakers that an ad hoc tribunal “the solution most likely to provide justice is not a stand-alone ad hoc tribunal for Syria.”

It isn’t entirely clear why an ad hoc tribunal is an offence to the Court nor ultimately a denial of justice to Syrians. There is no inherent need for the Court to be the only show in town. In fact, there is a good argument to suggest that an ad hoc tribunal would actually protect the Court from undue politicization. Not all international jurists are convinced that a referral of Syria to the ICC would be a good thing for the Court. There is an ever-present risk that a referral would be  tailored to suit the political interests of the certain members of the Security Council. Moreover, it is unlikely the Court would get funding from the Security Council (the US is legally prohibited from giving the ICC any financial support). With all of the controversies swirling around the ICC, does it really want to become embroiled in the political machinations of the single most controversial conflict in the world?

At the same time, an ad hoc tribunal may be a more realistic option than any Security Council referral. Russian Foreign Minister Sergei Lavrov has seemed amenable to the idea of such a tribunal, although he added that it would have to await for an end to fighting.

The fact that both sides of the conflict are alleged to have committed serious crimes has acted as the primary barrier to any ICC referral. With the lessons of Libya in mind, Russia is weary of the Court being used solely against the Assad regime. The UK, France and the US are undoubtedly concerned that the Court would investigate the ‘guys in their corner’ – the Syrian rebels. In its cases to date, the Court has been reluctant to prosecute both sides of a conflict, at least at the same time. In Syria it would be under immense pressure to do so – and to do so quickly.

Changing the Parameters of the Debate

None of the above options are perfect. All have serious downsides. But they need to be debated more honestly and vociferously. Whatever justice is delivered or achieved in Syria won’t be perfect — because it can’t be perfect. But debating all of the options on the table can at least help to determine the precise costs of each and to establish which is ultimately the least-worst option. Otherwise, the people of Syria will continue to wait and suffer as we debate how to achieve the impossible.