Referring Syria to ICC Could Lead to Peaceful Leadership Transition

Courtesy Wikimedia Commons

Courtesy Wikimedia Commons

The international community might be headed in a positive new direction guided by peaceful proposals intended to address the violence in Syria. The question is whether the current option – that Assad hand over his chemical weapons – will be effective and timely. As with the intervention debate, the end goal of this option is unclear.

Fortunately, statements last week by President Barack Obama and Russian president Vladimir Putin strengthened the case for another peaceful solution with a clear objective to stem the violence in Syria –  a referral to the International Criminal Court (ICC). If Putin’s government is serious about avoiding military intervention and President Obama is serious about punishing perpetrators of atrocity crimes, then the ICC presents a meaningful compromise. 

Regardless of where the fault lies, there is little doubt that the use of chemical weapons in an orchestrated massacre of civilians in the Damascus suburbs constitutes a crime against humanity and a war crime, as President Obama noted in his speech to the nation last Tuesday. Like genocide, these two categories of atrocity crimes fall under the jurisdiction of the ICC, a judicial forum tasked with investigating violations of international criminal law.

Since Syria is not a party to the Rome Statute treaty that established the ICC, only the UN Security Council can refer the situation to the Court. With allegations of atrocity crimes committed by actors on both sides of the conflict, this option can accommodate the interests of Russia, China, the United States, the United Kingdom, and France – the five divided, veto-wielding members.

Mr. Putin and his allies in China are well aware that the ICC first investigates atrocity crimes before it decides whether to bring charges. And that it can do so with respect to all sides of a conflict. A UN Commission of Inquiry report released last Wednesday – which again condemns both Assad’s government and the rebels for committing war crimes and crimes against humanity through acts including murder, torture, and rape – should give Russia and China some comfort that justice will not be one-sided. The Court can start by examining these findings, in addition to those of the UN inspectors who visited the site of this massacre in the aftermath of the attacks and released their report yesterday without assigning fault.

As President Putin said in his recent Op-Ed piece in the New York Times, consensus building at the Security Council is essential. So are non-military options. The remarkable thing about Putin’s talk of a non-military solution, however, is that the prospect of an ICC referral has been sitting on his desk since 2011. Yet Russia has rejected attempts by members of the UN Security Council and international community to pass a resolution and threatened to use its veto power. Secretary of State John Kerry should use this bargaining chip in response to Russian Foreign Minister Sergey Lavrov’s attempts to take the military option off the table.

UN High Commissioner for Human Rights Navi Pillay asked the Security Council – as early as August 2011 and as recent as February of this year – to refer Syria to the ICC. And in January, Switzerland led an effort with 57 other countries, including permanent Security Council members France and the United Kingdom, urging the President of the Council to make a referral. According to Human Rights Watch, a total of 64 nations have called for this option, including six current members of the Council.

Russia’s resistance to this approach meant to hold violators of international law to account undermines President Putin’s current campaign to be seen as the good guy focused on diplomatic solutions. It also calls into question his position that the rebels conducted the chemicals weapons attack on August 21.

As we have seen over the past few weeks with President Obama’s threat to use force in this complicated proxy war, non-violent tactics can deter future acts of violence. An ICC referral and possible indictment of perpetrators on both sides of the conflict might also serve as a deterrent. Most importantly, a serious proposal to combat impunity through international justice can stop not only the use of chemical weapons, but also mass atrocity crimes committed without WMDs.

Regrettably, the UN Commission of Inquiry report released last week noted that the perpetrators have no fear of accountability. This is exactly why 120 countries joined together on July 17, 1998 to adopt the treaty that established the International Criminal Court, the culmination of a decades-long experiment in international justice starting with the Nuremberg trials at the end of World War II. They created the Court to deter mass violence against civilians in warfare and to hold accountable those who commit such crimes anyway. Surely, their efforts were not made in vain.

An ICC referral would show Assad and the rebels that they cannot act with impunity. It would restore faith in the role of the UN Security Council, which has been deadlocked throughout Syria’s civil war. And it would add legitimacy to the International Criminal Court at a time when it has remained largely silent in the face of a protracted, documented, horrific civil war. The referral may also facilitate efforts toward a peaceful transition. ICC indictments and arrest warrants issued against key political and military leaders charged with ordering widespread atrocities can marginalize those individuals. Such legal actions can remove these obstructionist actors and the obstacles they pose to the political solutions espoused by President Putin.

The groundwork has already been laid. As some experts note, the current proposal for President Assad to put his chemical weapons arsenal under international control is a complicated, risky process that could take years. Now that Putin is engaging the international community about Russia’s willingness to negotiate a non-military angle and to seek consensus at the UN Security Council, it is time to push him, yet again. A referral of the situation in Syria to the ICC could happen as early as today. So what are we waiting for?

Annie Castellani is an attorney and writer. Previously, she was a fellow at the Public International Law & Policy Group, a global pro bono law firm focused on democratic transitions. Her views are independent from those of the organizations with which she is affiliated.

  • Justin Fax

    This ICC argument is pretty flakey.
    For starters, the US (think drone strikes, torture, etc.) and China (think torture and unlawful imprisonments) couldn’t seriously demand Assad got to the ICC with their own sorry records.
    Then the elephant in the room – Israel — who like Syria isn’t a Security council member but like Syria has a lengthy history of human rights abuses. Now I know, the US argument is that International Law andn human rights doesn’t apply to Israel, the so called “Shoah” exception, but in this case the hypocrisy would be ridiculous.

    • Justin Fax

      Just want to expand on what I said. The whole point of “International Law” is to set norms and precedents for how international matters will be adjudicated. The US is a non-signatory to ICC, so for them to push for this is a non-starter. (US can’t join ICC or else some prominent past and present politicians, like Henry Kissinger, will be going there).
      Secondly, the Syrian example of referencing to ICC poses a few other issues:

      a) Prior to the Syrian civil war, the 3 worst regimes in the Middle East on human rights issues were the Saudis, Bahranians, and Israeli’s (in no particular order).
      b) The Syrian not-so-civil war was perpetrated by the Saudis with the tacit approval and support of the US and others:
      http://www.newyorker.com/reporting/2007/03/05/070305fa_fact_hersh?currentPage=all
      c) The US itself has used chemical weapons numerous times in war of aggression, most recently in Iraq (white phosphorus and depleted uranium). On top of that, the US has tacitly supported the use of chemical weapons by its allies, most famously by Saddam Hussein in the 1980’s against the Iranians.
      http://www.foreignpolicy.com/articles/2013/08/25/secret_cia_files_prove_america_helped_saddam_as_he_gassed_iran
      d) Now if we are to take the tact that all UN Security council members have a special status, and therefore the US is exempt, we can take the Israeli example of using chemical weapons (white posphurus) as well as the intentional collective punishment of a civilian population (not to mention the violation of the geneva conventions)
      e) The US itself says when fighting terrorism, it’s acceptable to use extra judicial means, like drone strikes, etc. in foreign countries. The Saudis are recruiting and financing terrorists to enter Syria, so this isn’t a classic “Saddam gassed his own people” case.
      The author’s very attempt to apply international law (and therefore precedent) to a situation where clearly so many international norms have been broken, the least of which is American support for terrorists (via the Saudis), is problematic at best, criminal at worst.
      The ICC is meant for more clear-cut cases of crimes against humanity. It isn’t meant to be used selectively to advance American and Western foreign policy interests, especially in an area such as the Middle East where American double-standards and hypocrisy is so evident.

      • Annie Castellani

        Justin – thank you for reading. I wanted the piece to be thought
 provoking, and I appreciate hearing your thoughts. The problem with your
 comments is that they may be a little misplaced in a piece proposing a peaceful, neutral solution to the Syrian conflict. You seem to read a number of assumptions into the piece (which
        are perhaps better suited for an agenda-driven or less informed audience)
        and use them as straw men arguments to tear down so you can vent about
        your views on the regional conflict. The role of nations like Israel and Saudi Arabia is, no doubt, an essential component of a debate on the larger US policy on Syria. I do not think any reader of front-page news would deny this fact.
        I just do not see why it forms the basis for a critique of advocacy in support of a non-violent
 action by a neutral judicial body, backed by a majority of the
        international
 community, and equipped with the authority to investigate crimes
        on all sides of the conflict. After all, neither Saudi Arabia nor Israel
        is on the Security Council, which would refer a case to the ICC. It is
        true that the US is not a signatory to the Rome Statute – President
        Clinton signed the treaty but the Bush Administration 
revoked the signature –
        but this position has not deterred the Council from 
voting in favor of two UN
        Security Council resolutions referring the situations 
in Libya and Darfur to
        the ICC. In the case of Libya, the Council — including 
the US, Russia, and
        China — unanimously adopted a resolution. In the case of Darfur, the US and
        China withheld their veto power by abstaining from the vote. So there is
        precedent that this approach can work, even in the face of realpolitik,
        and regardless of the human rights record of the US. The ICC is a
        forward-looking solution that can correct past wrongs. Your approach seems
        more focused on simply pointing out past wrongs. I do not see how these
        should prevent the international community from putting a spotlight on
        Putin and Russia’s resistance throughout this conflict and advocating that
        the ICC has a role to play here.

        • Justin Fax

          OK where to begin, so much to argue about here.

          a) You say “If Putin’s government is serious about avoiding military intervention”
          Avoiding military intervention? The Syrian Civil War was instigated by the military intervention of Saudi Arabia and Qatar with US complicity! (E.g. the ORIGINAL MILITARY INTERVENTION was by the Saudis, Qataris and their proxies):
          http://www.newyorker.com/reporting/2007/03/05/070305fa_fact_hersh?currentPage=all
          Have you even read the article above, or are you pretending this fact doesn’t exist?

          b) When you say “The problem with your comments is that they may be a little misplaced in a piece proposing a peaceful, neutral solution to the Syrian conflict.”. Syria was relatively peaceful until the Saudis and Qataris executed their plan. Syria, like any dictatorship in the region, has inequality and seething reassessment by a significant portion of the population (not all Sunni’s, but many of them). But prior to the Saudi/Qatari plan the average Syrian was much better off and much more content then say a Bahraini, Saudi, or Palesitinian — each of which has been met with overwhelming military suppression (thanks in no small part to the US) to cow those people’s attempt at greater freedom. Yet, for example, the Israeli’s are allowed to jail the Palestiniains with relatively impunity, but someone like Ariel Sharon can get away with genocide (see Sabra and Shatilla genocide in 1982). This double-standard is at the heart of what makes the ICC problematic, and to a greater extent international law, because any law needs to be applied consistently and work off precedent.

          c) Also, when you say “President Obama is serious about punishing perpetrators of atrocity crimes, then the ICC presents a meaningful compromise.”
          The problem I have with this argument is the one I’ve had for the last 50 years, namely that the ICC (and other similar courts) are for “them” and never for “us”.

          As I said before “The whole point of ‘International Law’ is to set norms and precedents for how international matters will be adjudicated”.

          d)
          Let’s see what else is wrong with the Syrian case:

          i) The US and its allies invaded Afghanistan, and killed many civilians and “terrorists” alike to go after Al-Qaeda and their allies (the Taliban). (There was a lot of “atrocity” and other “crimes against humanity” called collateral damage in both Afghanistan and Iraq fyi). To this day, the US still commits extra-judical killings via drone strikes, which is a clear and flagrant violation of international law. But that’s ok because it’s “us” right?

          ii) These same Al-Qaeda types, and other similar jihadists are recruited and financed by the Saudis in particular to invade Syria for the purpose of regime change. Yet you would offer a double-standard for how a vastly inferior military (Syria) deals with what is now a “civil war” (albeit one of the most uncivilized wars in recent memory).
          And you would apply certain standards to Syria and the Assad regime that the US and its allies the Saudis, Bahrain, Israel, etc. are exempt from? Because either you are for the equal application of international law or you are for the status quo which is referring “them” (the US enemies) to the ICC while protecting US (the US and its allies like Israel) from the ICC.

          You realize that most of the world outside of this “Western bubble” we live in realizes the hypocrisy at work in Syria right?

          I’m sorry but if you can’t realize the ridiculousness of this situation, particularly in the fact that in a post-9/11 reality Americas allies have been flooding Syria with jihadists, then you are just taking the classical Western Imperialism view of the world. Get out of the bubble, and see the world for what it is.

          The Syrian Civil War was orchestrated by America and its allies to tilt the “Balance of Power” of the region strongly into America’s hands. Syria is ground zero in the American coalition battle to isolate Iran completely from all its allies.

          There won’t be peace in the Middle East until international law is applied evenly to every nation in the region.
          You may think that Putin vetoing resolutions against the Syrians is bad for peace.
          Most of the world would argue, for example, that the countless US vetoes used to protect, for example, Israeli apartheid and lebensraum (taking of additional land in West Bank) is bad for peace in the region.

          Your piece is just the typical one sided argument “let’s take care of the bad guys on their side” but if you looked outside the bubble you would see that most of the “bad guys” in the region are from “our” side and the US and the West has a history of protecting some of the worst regimes for foreign policy reasons while trying to use organisms like ICC to more easily take care of their enemies. Most of the time it works thanks in large part to US military superiority, but sometimes it leads to brinkmanship which is what is happening here.