The real question on Syria: Why no war crimes indictments yet?

Crackdowns on the scale of Syria's have prompted action by the International Criminal Court elsewhere. The ICC opened an investigation against Qaddafi just three weeks into Libya's uprising.

By , Staff writer

The ongoing crackdown on protesters against Syria's Baathist dictatorship has gone from one atrocity to the next as flustered foreign governments, with few cards to play against a regime seemingly determined to hold on at all costs, have looked on mostly helplessly.

The US has placed sanctions on President Bashar al-Assad and some of his closest allies, and Secretary of State Hillary Clinton implored other countries to follow suit yesterday. Saudi Arabia, not exactly a friend of democratic change in the region, pulled its ambassador to Damascus in response to the killing of hundreds of protesters during the holy month of Ramadan. And in the US, there are growing calls for President Barack Obama to demand that President Assad step aside, as Peter Grier reports for us today.

But if one thing is clear from Mr. Assad's actions in recent months, the utterance of "magic democracy words" by Obama (as some supporters of his policy of keeping Ambassador Robert Ford in Damascus call them) won't shift the regime by themselves.

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What's been more striking to me, given the mounting evidence that Syria is deliberately turning portions of restive cities into free-fire zones and torturing protesters to death in custody, including some teenage boys, is the lack of action from the International Criminal Court (ICC). In the past day alone, 17 protesters have been killed by security forces across the country, Al Jazeera reports. In Hama, a restive city where Assad's father and predecessor ordered thousands killed in the early 1980s for rising up against him, local activists say 200 have been killed since the start of Ramadan on Aug. 1 and more than 1,000 arrested.

Syria is five months into its uprising, and more than 2,000 people have been killed so far. The ICC opened up a formal investigation into Qaddafi and some of his lieutenants just three weeks into the country's uprising. Chief prosecutor Luis Moreno-Ocampo requested arrest warrants on May 16, which were duly handed out on June 27.

Mr. Moreno-Ocampo, who has been vigorous in his complaints about crimes in Libya, has been largely silent on Syria. But the violence in Syria has been as bad, or worse, than in Libya, and it's clearly being carried out as part of an orchestrated campaign.

For all the claims every time indictments are handed out that a message has been sent to present and future war criminals and that the ICC is having a deterrent effect on the behavior of regimes that, after all, are fighting for their survival, Syria is a reminder that not all war crimes are created equal. The context matters – who you are, who your friends are, and how afraid major powers are of the consequences.

The Los Angeles Times reports this week that a "western government" is paying for an investigation designed to lead to indictments (the paper didn't say which one), and that some foreign governments, led by the United Kingdom, have called on the international community to take stronger action. But so far, no steps have been taken. US Ambassador to the UN Susan Rice reminded reporters this week that ICC action would require support from the UN Security Council.

"I think if we were talking about whether that would be forthcoming today, I would have to say, quite candidly, I doubt it," Ms. Rice said.

Though she didn't say so, it's clear that Security Council members like China and Russia are nervous about expanding the ICC's remit. Blogging at the Council on Foreign Relations earlier this month, Stewart Patrick argued that China and Russia are afraid that "if the UN Security Council is entitled to investigate human rights abuses and use force against national governments, it might act upon longstanding outrage at human rights abuses in their own nations."

While in the short term an indictment probably would be worth as much as Obama calling Assad up and telling him to go (i.e., not much), it would be a much stronger step, and represent a real threat to Assad's future mobility and status in the world – something that would certainly give many of his allies pause, wondering if they're next.

Of course, the ICC indictment of Libya's Muammar Qaddafi has done little to budge that dictator. But an indictment against Assad would be a truly isolating, united international step at least, unlike a unilateral cut of all ties by Obama, which would leave the US out of the loop even as Assad pursues his relationships with other nations.

But the Libyan case compared to Syria is instructive about how inconsistent the ICC can be when it comes to taking action, a sign that it's as influenced by international politics as by a desire to mete out justice. While a broad regional and global consensus against Qaddafi emerged quickly after that country's uprising began in February, the more complicated case of Syria – with the clear danger of sectarian fighting in the aftermath of the regime's fall and fears that problems there could destabilize neighbors like Lebanon – has created a muddier international picture.

Follow Dan Murphy on Twitter.

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