Syria’s relentless civil war has taken a dramatic turn for the worse. The White House recently declared that Syrian government forces had used chemical weapons multiple times against rebel forces, a war crime in and of itself. Militias loyal to Bashar al-Assad have stepped up massacres of civilians and prisoners of war perceived as allied with the largely Sunni opposition. The rebels, for their part, are using increasingly brutal tactics, with some groups threatening to wipe Shiite and Alawite towns “off the map”.
Against this grim backdrop, the United States and Russia are planning to convene the second meeting of an international conference in Geneva to seek a negotiated solution to the crisis.
Don’t hold your breath.
Any hope of reaching a durable peace in Syria will require leverage at the negotiation table over the Assad regime and rebel forces—leverage global leaders currently lack. Given the explosive sectarian and ethnic pressures at play, Syria’s post-conflict stability will depend on ensuring rule of law and respect for human rights. Yet commentators and policymakers have largely ignored the International Criminal Court’s (ICC) potential to shape the Syria crisis’s endgame—and its aftermath.
As things stand now, international involvement in Syria is limited to tit-for-tat military escalation that does little to incentivize either side to negotiate for peace in good faith. In fact, realities on the ground demonstrate that chances for peace in Syria are receding. Far from being cowed by the two-year old insurgency, Assad’s forces, with support from Hezbollah and Iran, are gaining ground against the increasingly fragmented rebels. The recent U.S. decision to arm certain rebel factions with “small arms and ammunition” is unlikely to have much strategic impact without mobile air defense systems to counter Assad’s air superiority. Even if the rebels receive heavy weapons from other sources and succeed in reversing Assad’s advances, there is no guarantee they will trade their swords for ploughshares, abide by international law, or support the creation of a free and democratic society. Finally, arming Syrian insurgents could lead to blowback—a lesson the United States learned the hard way from supporting the Afghan mujahedeen, the forerunners of the Taliban, against the Soviet Union.
How might the threat of an ICC investigation and possible indictment change the Syrian dynamic? First, unlike the sharp domestic and international debate over arming the rebels and military intervention, there is widespread consensus that the Assad regime and certain rebel forces have committed war crimes and crimes against humanity. In February 2012, a United Nations Human Rights Council report detailed the regime’s “state policy” of attacking civilians with tanks and helicopter gunships, torture, summary executions, and—in a disturbing echo of the Balkans conflict—deliberate targeting of women and children by snipers.
Remarkably, since that report was issued, the Assad regime’s attacks on civilians have only intensified. Most recently, the chairman of the U.N.’s commission of inquiry on Syria cited “[i]ndiscriminate and widespread shelling, the regular bombardment of cities, mass killing and the deliberate firing on civilian targets.” This same commission of inquiry also found widespread crimes committed by rebel forces, including murder, rape, torture and forced disappearances. That a criminal case could be brought against Assad and his military leadership, as well as certain rebel leaders, is now beyond debate. This objective truth could provide a rare point of private agreement among the permanent five (P5) U.N. Security Council members.
Second, the threat of an ICC referral could be a potent negotiating tool for peace. Specifically, a timed or contingency referral by the Security Council—whereby the ICC would be authorized to investigate only if a binding peace agreement between the parties is not reached within a certain time frame, or subsequently broken—would give both sides incentive to reach and maintain a peace agreement. Most leaders, even those who promote atrocities, are rational actors and will want to avoid the harsh scrutiny accompanying an ICC investigation and likely indictment and trial.
If these leaders ignore the specter of ICC involvement, or fail to reach a peace deal before the deadline, the consequences would be significant. Evidence of their mass criminal behavior would be broadcast to the world, and the investigation, indictment and trial would marginalize those who allegedly participated in atrocities or support their continued use. At the same time, moderate parts of the regime and rebel opposition would be elevated and motivated to reach a political settlement.
The biggest hurdle to an ICC referral remains the Security Council itself, where Russia holds a veto. (Because Syria is not a party to the ICC’s foundational Rome Treaty, the ICC could only realistically acquire jurisdiction over the conflict through the Security Council.) To be sure, an ICC referral is bound to be contentious and would require a Herculean diplomatic effort to achieve. Nevertheless, Russia, as a signatory to the Rome Treaty, might be persuaded to abstain from any Security Council vote, as it did with previous ICC referrals (Sudan and Libya). Securing Russia’s cooperation may require diplomatic guarantees that Russia will maintain a strong economic and strategic role in a new Syria.
As for P5 members willing to do so, promoting an ICC referral as part of a larger effort to end the war could yield significant “soft power” gains in a new Syria. An ICC referral would subject both the Assad regime and rebel leadership to objective and widely recognized norms of international criminal law. P5 members that champion the rule of law and accountability for all Syrians would be in a better position to establish close strategic relations with a new Syria and gain the benefits of that relationship.
Despite these advantages, an ICC referral would not be a panacea for all of Syria’s ills, and will only benefit Syria if fully supported. The ICC’s involvement in Libya, while still unfolding, serves as a cautionary tale. When the Libyan conflict subsided, the Security Council gave the ICC only tepid support, despite having referred Libya to the ICC in the first place. This failure partly led to the unjustifiably long arrest and detention of four ICC staff members in Libya last year, and ICC investigations of Libyan suspects that many believe lacked precision and comprehensiveness. For ICC intervention in Syria to succeed, the Security Council and the broader international community would need to ensure the ICC gets unfettered access to the country (to the extent feasible), and receives the necessary political, diplomatic, and financial support to fulfill its mandate.
A contingent ICC referral is not ideal, since it would not guarantee accountability from the onset. In an imperfect world, however, stopping ongoing violence and mass atrocities must come first. Yet, given the evolution of international criminal law over the past two decades, accountability is no longer a question of if but when. Once a durable peace has been achieved, the issue of accountability will no doubt resurface and could be addressed through various means: continuation of the Security Council referral, or a regional or local tribunal supported by the UN, ICC, or Arab League.
A contingent referral could help break the cycle of military escalation that threatens to turn Syria into a full-scale proxy war. It would also demonstrate to the world that the P5 are not solely driven by realpolitik, but by a commitment to international criminal justice as well. Although hardly a guarantee that either side would accept a peaceful, democratic transition at the moment, a contingent ICC referral would provide a point of leverage—and international consensus—that relies on objective standards of international law rather than military force.
J. Trevor Ulbrick is an attorney and consultant specializing in international law and foreign policy. He has advised governments, tribunals, and civil society organizations throughout the Middle East and Africa on international criminal law, transitional justice, and democratic governance issues.
Kip Hale is senior counsel at the American Bar Association Center for Human Rights, and directs the ABA-International Criminal Court project. Previously, he worked in the Office of the Co-Prosecutors at the Extraordinary Chambers in the Courts of Cambodia (ECCC) and at various posts at the International Criminal Tribunal for the former Yugoslavia (ICTY).
Photo: Alamy
Image: ICC.jpg