The debate about how to respond to the horrendous chemical weapons attacks that took place in a suburb of Damascus on August 21 seems to be taking the usual course. It is a debate about military intervention versus diplomacy. Military intervention, assumed to be air strikes, is considered risky; it will not knock out the chemical weapons facilities, it will inevitably kill some civilians as collateral damage, and it could escalate the war. Talks would treat Assad, the person responsible for the humanitarian catastrophe unfolding in Syria whether or not he was directly responsible for the chemical attacks, as a legitimate political actor. So are there no good options?

The problem with this debate is that it is conducted entirely in geo-political terms. The war is viewed through a very traditional lens – it is a war with sides which can only be brought to an end through victory of one side or through a political agreement.  What it totally misses is the humanitarian dimension, which is enshrined in international law. Imagine if a criminal had poisoned someone in the United States or Britain. Would we debate whether to kill him (or her) or whether to talk to him (or her)? Rather our concern would be how to protect the public from future poisonings and how to arrest the criminal and bring him (or her) before a court of law. It is through this lens that we ought to be viewing the conflict in Syria. Our primary concern should be how to protect the victims of this ongoing and brutal violence and to uphold the norms of international law.

The war in Syria is illegal. It violates both International Humanitarian Law (the Laws of War) and Human Rights law.  The Assad regime has bombed protestors, shelled civilian areas, used its Shabiya militia to carry out atrocities against civilians including systematic rape, as well as cutting off basic services and salaries to rebel held areas. The rebels are fragmented and divided and many of them have also inflicted massive violations of human rights.  The flow of displaced people within Syria and beyond seems unstoppable. The latest estimate from UNHCR is that there are now  more than 2 million refugees and there are as well hundreds of thousands of internally displaced persons. Around 100,000 people have died, probably 1-2000 in the latest chemical weapons attacks.

In particular, the use of chemical weapons is illegal. The Chemical Weapons Convention is one of the rare disarmament treaties in the world aimed at the elimination of a complete category of weapons (although Syria is one of the few countries that has not signed the Convention). The use of chemical weapons is not only a violation of human rights and international humanitarian law, it is also explicitly mentioned as a war crime in the Rome Statute that established the International Criminal Court (ICC).

So how would the world respond if what is happening in Syria were viewed through a legal and humanitarian lens rather than through a geo-political lens? First of all, the chemical attacks should be referred to the ICC. Syria is not a signatory to the ICC so it would require UN Security Council authorisation.  But supporting this might be easier for Russia and China, who are both signatories to the CWC, than a resolution authorising military intervention. Russia is a signatory to the ICC and although it has opposed referral of Syria to the ICC in the past, the current context might change things. China opposed the Rome statute at the time but has since signalled support for the court. The US unsigned the Rome treaty and is opposed to the ICC but was persuaded to abstain in 2005 when the situation in Darfur was referred to the ICC. Iran, although not currently a member of the Security Council might also support this course of action because of deep Iranian antipathy to the use of chemical weapons after the Iran-Iraq war in the 1980’s.

In contrast to the UN inspectors, whose mandate is to establish whether chemical weapons have been used, the ICC could ask the Prosecutor to investigate who is responsible for the attacks. It is still not established that the Assad regime is responsible for the chemical attacks. Undoubtedly the regime has the capacity and the use of chemical weapons is consistent with its tactics of spreading fear and panic so as to empty rebel-controlled areas. But what is difficult to explain is why the attack took place the day the UN weapons inspectors arrived and when the regime seemed to be winning. Could it have been a rogue general? Once perpetrators are identified, including lower level chemical officers, then there should be efforts to arrest them and bring them to the Hague.

Bringing all the international actors together on the issue of chemical weapons might provide a basis for a consensus on humanitarian issues. There is never going to be agreement on geo-political issues, so if the Geneva II talks that the special envoy Lakhdar Brahimi is trying to get going focus on a political settlement, it is unlikely they will succeed. Rather the talks should focus on humanitarian issues; how to stop the killing of civilians and how to protect people. There has been a lot of discussion of Responsibility to Protect. The Libya precedent has implied that Responsibility to Protect just means military action. Actually what happened in Libya was not a Responsibility to Protect action. You cannot protect civilians from the air. It was an intervention on the side of the rebels that led to regime change, and, even it was a good thing to get rid of Gaddafi, many people got killed in the process and those who had guns became more politically powerful... That option even if it were desirable would be much more difficult and bloody in Syria. Rather Responsibility to Protect needs instead to be internationally authorised to protect people directly and to arrest war criminals. The talks should focus on how to get a UN presence on the ground for this purpose.

Of key importance is the involvement of civil society. There has been an upsurge of civil society activism in Syria since the war began. Many of those who were involved in the protests against Assad during 2011 and strongly supported non-violence are now engaged in a range of humanitarian activities; organising local cease-fires; establishing local administrations in rebel-held areas;  delivering humanitarian assistance; organising political dialogues among all sides; persuading fighters to turn to non-violence; running  schools or healthcare centres; or providing  assistance to the victims of sexual violence. Civil society needs to be directly involved in the talks. Neither Assad nor the rebels represent Syria; they have to take part in the talks because they have to stop the  killing but the involvement of civil society could help change the conversation and provide a broader representation of Syrian society. And the talks need to be directed at strengthening civil society activity on the ground; providing an international presence to uphold local ceasefires and to assist with the functioning of basic services, local political processes, and local security.

In the immediate aftermath of World War II, the nations of the world agreed to prohibit war. Since then, international law instruments dealing with human rights and disarmament have been greatly strengthened. There is a risk of an escalating war in the Middle East that could undermine all those achievements and weaken the prohibitions against the use of weapons of mass destruction. The experience of Iraq suggests that military intervention without Security Council authorisation weakened rather than strengthened international law, and while it succeeded in removing Saddam Hussein, has left Iraq more violent and dangerous than ever before.

Rather, this is a moment to take the initiative to move towards a rights-based law-governed world just as those of us living in the United States and Europe take for granted within our own societies. The first step would be to refer Syria to the International Criminal Court.