Proponents of the court are undoubtedly excited about the prospects of an ICC intervention in Syria. Facing obvious pushback from the Security Council, many, including former ICC chief prosecutor Luis Moreno-Ocampo, had previously concocted creative approaches to getting the court involved. Now their hope is that the council will grant the court the ability to open an investigation into crimes committed in Syria.
But the growing feasibility of a referral calls for sober reflection. Pursuing international criminal justice in Syria is a much more complex affair than it may first appear. At least three separate, albeit related, questions need to be answered: What does the change in U.S. policy mean with regards to a potential referral of Syria to the ICC? Is an ICC intervention into the ongoing conflict a good idea? And, if requested to do so, should the ICC intervene in Syria?
First, does the U.S. administration’s volte-face really change anything? There are two competing opinions on the matter. First, some believe that the United States’ much delayed support for a referral of Syria to the ICC is simply political grandstanding. Knowing that Russia (and perhaps China) will veto any referral, the cost of throwing support behind the ICC is low, but the benefits are high: Being able to slam Russia as being on the wrong side of history – and justice. Conversely, the Obama administration’s change in position can be seen as a “conversation changer.” While it may not automatically translate into a referral, it is an obvious and necessary condition for eventually having Syria investigated by the ICC. There is no denying that there can be no backtracking on the part of the United States and that the discussion of an ICC referral has been reinvigorated.
No one, however, is willing to suggest a referral is forthcoming – at least not any time soon. The most obvious barrier is Russia’s recalcitrance. However, there is also another reason why the ICC is unlikely to be asked to investigate Syria. There is widespread recognition – and growing evidence – that both the Syrian government and Syrian opposition forces have committed war crimes. In order for the Security Council to agree to a referral, there needs to be a consensus within the council on precisely whom the ICC should target for prosecution. Previous investigations demonstrate that the court tends to target only one side of the ongoing and active conflicts in which it intervenes (see here for reasoning). Without a consensus on the council as to who should be targeted, it is hard, if not impossible, to imagine a referral being achieved.
Second, would it be wise to refer Syria to the ICC? Proponents and critics of the court have long engaged in the so-called “peace versus justice” debate. While the ICC’s supporters believe that the court can have positive effects on conflict resolution and that justice is absolutely necessary for establishing and maintaining peace, critics argue that international criminal justice can undermine peace processes and prolong violence. These fears have been played out in every ICC intervention into an ongoing and active conflict.
The truth is that we don’t know as much as we would like to about the effects of the ICC on conflict resolution. The claims made by both sides within the “peace versus justice” debate tend to be persuasive and intuitive. But the effects of the ICC are also often overstated. Had the court intervened in Syria two years ago, would the current situation be any worse? The negative effects attributed to the court’s interventions – that ICC targets will fight to the bitter end, that the conflict will become protracted and that negotiations will flounder – have all been realized – without any help from the court!
Third, would it be good for the ICC itself to intervene in Syria? Few issues have defined the first 10 years of the ICC’s existence more than its relationship with the Security Council. The court was created, in part, in order to transcend the power politics of the council. To date, however, it has done quite the opposite.
The Security Council has previously referred two situations to the ICC – Darfur in 2005 and Libya in 2011. In both instances the council severely restricted – and politicized – the court’s mandate. Both referrals exempted citizens of states that are not members of the ICC from the court’s jurisdiction. Both referrals guaranteed that the ICC would be saddled with the entire financial burden of any subsequent investigation. In both cases, the ICC focused primarily on consensus opponents of the council: The government of Omar al-Bashir in Sudan and the Gaddafi regime in Libya. Moreover, and this is the real kicker for the court, in both cases the ICC ended up empty-handed, without a single “big fish” from either situation in its dock.
Any referral of Syria to the ICC would seek to repeat all three of these conditions: Exempting citizens of non-state parties from investigation or prosecution; ensuring that the court foot the bill for its work at the behest of the council and prodding the ICC to focus on specific targets. To varying degrees, these conditions all hinder the capacity, legitimacy and independence of the court. History suggests that the ICC also tends to be fleeced – with the vast majority of those it targets as a consequence of Security Council referrals evading justice and council members lackadaisical about enforcing arrest warrants.
This is not to say that the ICC should reject a referral. It shouldn’t. And given what it would say to victims in Syria, it is impossible to think that it would. But there is a need, on the part of the court’s supporters and especially the ICC’s prosecutor, to think very clearly about the costs of another highly politicized referral. Officials and proponents of the ICC consistently reiterate that states need to respect the independence of the court. But the ICC needs to respect its own independence too. Syria is a big test – for justice and for the ICC itself.