Should We Call for Criminal Accountability During Ongoing Conflicts?

Abstract

This article suggests an account in the language of criminal law that merits the language for criminal accountability over the language of human rights, as a form of accountability, when prosecution is not possible. Calling for the prosecution of those most responsible for international crimes seems to be feasible after the war has ended, or at least when there is a vision for a political transition, but the war in Syria is ongoing and a vision for political transition remains elusive. The Syrian conflict has produced almost all kinds of heinous crimes, yet there is no clear political will to hold the alleged perpetrators of atrocity crimes accountable. At the same time, calls for criminal accountability in Syria, and discourse to achieve international criminal justice are taking place before the civil war ends. This article relies on the expressive theory of punishment to assess the rationales of calls for criminal accountability during the ongoing conflict in Syria. Out of many rationales, the article notes that calls for criminal accountability open the possibility of punishment and send a message of condemnation to perpetrators as well as a message of acknowledgment to victims. Furthermore, using the language of criminal accountability as a basis for the calls is stronger than using the language of human rights. The article discusses the problem of standing to call those responsible for international crimes to account and proposes that our shared humanity provides the authority for such calls while also pointing out limitations of this approach.