Nevertheless, the court will not take on war crimes in Syria, not anytime soon anyway. China and Russia voted Thursday against a Security Council resolution that would have empowered the world tribunal to go after perpetrators of crimes against humanity in Syria.
Before the vote, the United Nations deputy secretary general, Jan Eliasson, issued a poignant rebuke. “If members of the Council continue to be unable to agree on a measure that could provide some accountability for the ongoing crimes,” he said, “the credibility of this body and the entire organization will continue to suffer.”
Now those who demand accountability for war criminals in Syria will have to prepare other options, potentially including ones outside of the International Criminal Court. One option could be setting up a special tribunal, which American officials have privately suggested in the past. Another could involve plucking war-crime suspects from Syria when they travel abroad — to go shopping or attend a child’s college graduation, for instance — to be tried under universal jurisdiction laws. A third could involve a General Assembly resolution under a provision called Uniting for Peace, which can be invoked when the Security Council is believed to have failed to do its job in maintaining peace and security.
“In the face of mounting crimes, and 150,000 dead, the international community must think creatively about how to ensure accountability in Syria — with or without the Council,” Beth Van Schaack, a law professor at Santa Clara University and a former special adviser to the State Department, wrote Thursday on a legal blog called Just Security.
None of these options would be easy, legal scholars and diplomats have said. Each would face considerable diplomatic and legal hurdles. Supporters of the world court say that this is precisely the kind of war that it was set up for, and that it would be a waste of time and money to create something else.
Thursday’s vote underscored the paradox at the heart of how cases can be referred to the court. Syria has not signed the international treaty that created the court, which is why the court cannot start an inquiry, no matter how egregious the crimes. The court can act only if the Council demands it. Political deadlock among the Council’s five permanent members — Britain, China, France, Russia and the United States — has made that impossible.
China’s deputy permanent representative, Wang Min, told the Council on Thursday that referring Syria to the court for war crimes is “neither conducive to building trust” nor helpful in getting the warring parties back to political negotiations.
The French ambassador to the United Nations, Gérard Araud, described China’s and Russia’s decisions to vote against the resolution as akin to “vetoing justice.”
Mr. Araud told reporters afterward, “There is a moment when you realize you are powerless in front of barbarians and their supporters.”
France drafted the measure and garnered the support of 62 other countries.
Samantha Power, the United States ambassador, said the Council had not previously raised the prospect of a war crimes referral because it feared it would be vetoed. “But the victims of the Assad regime’s industrial killing machine and the victims of terrorist attacks deserve more than to have more dead counted,” she said. “They deserve to have each of us, the members of this Security Council, counted and held to account.”
The United States, which has not signed the treaty that created the Hague-based court, supported the draft resolution only after it secured important exemptions: namely protecting its soldiers from prosecution by the tribunal, should they ever get involved in Syria with Security Council authorization, and ensuring that its ally Israel — which holds the Golan Heights, territory that Syria also claims — is not made vulnerable to a court investigation. Qusai Zakarya, a Syrian opposition activist whom Ms. Power invited to the Council session, said the failed effort should propel action outside the Council.
“This will go to history,” he said shortly after leaving the viewing gallery above the Council chambers. “It will also show how the Security Council is helpless to help the Syrian people.”
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