Today during MoveOn's online “SyriaTown Hall”, Phyllis Bennis made an important point about seeking indictments for war crimes in ongoing conflicts. Once a party is indicted, his incentive to negotiate an end to the conflict decreases.
I personally favor handling the allegations of chemical weapons use in Syria as war crimes. The UNSecurity Council should refer the matter to the InternationalCriminal Court (ICC).
But if the Obama administration is correct—the U.S. government has lied about these things in the past—and the Assad government did order chemical weapons attacks, sending the matter to the ICC could be an impediment to negotiating a settlement.
I propose the concept of freezing charges at the ICC. In cases where the allegations are referred to the ICC, the allegations could have a rider attached to the referral.
The rider would say, if the conflict in Syria reaches a negotiated settlement approved by the UN Security Council the ICC's mandate to investigate and prosecute these war crimes allegations would be frozen. As long as the agreement holds, the prosecutions would not proceed.
This is an imperfect justice. But it also provides the UN Security Council more of a stick to prod parties to the negotiating table.