The False Hope of International Judicial Intervention in Syria

The post below was written by my friend and colleague, Patrick Costello. 

As the civil war in Syria grinds on, the President’s speech last week has shifted the debate from Congress back to the international community as they consider the framework agreement between the United States and Russia that would place Syria’s chemical weapons under international control, and eventually destroy them. Commentators and policymakers alike have also suggested a variety of international legal remedies to the atrocity crimes committed in Syria, including the use of chemical weapons, most notably involving the International Criminal Court (ICC). In fact, calls for ICC action on Syria have been made since 2011, and, most recently, Syria’s top rebel commander called for the ICC to investigate. While such calls are understandable given the merits of the case, involving the ICC must not replace military and diplomatic efforts. Moreover, pursuing ICC action is beset with obstacles, in terms of both political difficulties at the United Nations Security Council and mechanical complications at the ICC itself.

By way of background, the International Criminal Court was created in 2002 as a permanent international court to prosecute war crimes, genocide, and crimes against humanity. To date, 122 countries have ratified or acceded to the Rome Statute, the treaty that established the Court, with an additional 31 countries having signed but not ratified the statute; the United States falls into the latter category, as does the Syrian Arab Republic. Under the Rome Statute there are several ways in which a case can be brought before the Court: any state party to the Rome Statute can request the Office of the Prosecutor to carry out an investigation, a nation not a party to the Statute can accept the jurisdiction of the ICC and request an investigation, or the United Nations Security Council may refer a situation to the Court. Given Syria’s status as a non-party to the statute, and the fact that it is highly unlikely that it will voluntarily accept the Court’s jurisdiction, the only avenue for bringing an ICC case against the Assad government is through United Nations Security Council referral.

On Capitol Hill, the calls for international judicial intervention have been increasing, with several members of Congress advocating different mechanisms to hold the Assad regime accountable and serve as an alternative to the use of force.  Among those calling for Assad to be put in the dock are Representative Chris Smith (R-NJ), who proposes using the United Nations Security Council to establish a new Syria War Crimes Tribunal, stating this would be a “non-lethal alternative to a bombing campaign,” and Representative Barbara Lee (D-CA), who has introduced legislation urging the United States to prosecute the use of chemical weapons via the ICC as well as establish an international war crimes tribunal for Syria. While neither of these proposals may ever see floor action, they will shape the debate, potentially putting forward judicial intervention as a legitimate alternative.

Off the Hill, international legal scholars have joined the chorus urging the international community to use the ICC to end the atrocities in Syria. Notably, David Scheffer, former U.S. Ambassador-at-Large for War Crimes Issues, proposed that the Security Council could refer the situation to the ICC and “limit to some extent the Court’s jurisdiction to investigate and prosecute,” perhaps giving Assad and his cronies an opportunity to participate in a negotiated settlement, omitting their names from the referral, and threatening prosecution should they decline to participate in peace negotiations or should the talks collapse. Mr. Scheffer proposed that the above referenced conditions may mollify Russia, and other incentives could potentially persuade China to allow a referral to go forward in the Security Council, but this sends a terrible message to the rebel fighters who could themselves face justice in The Hague. Moreover, using the International Criminal Court as a bargaining chip sets a bad precedent. This would be damaging for the Court, as it brings into question its independence and politicizes the body, and lessens the chances for peace and reconciliation in a post-conflict Syria. A core element of the Rome Statute is equality before the law, and compromises made on this principle would lead to diminished legitimacy of the accountability exercise and would not serve as an effective means of halting the conflict.

It is easy to see why involving the International Criminal Court is an attractive option. Justice is scarce during war and the situation in Syria is no different. Yet there is nothing to suggest that a referral of the situation in Syria to the ICC would in any way change how Assad is prosecuting the conflict. Either course of action – the establishment of an ad hoc tribunal or referring the situation to the ICC – would require the United Nations Security Council to act, and the Russians would certainly not support such action. It is worth remembering that Russian Deputy Foreign Minister Gennady Gatilov stated earlier this year that a referral to the ICC would be “untimely and unconstructive,” and there is little to suggest that the Russian position on the matter has changed. Those currently advocating for ICC involvement or some other form of judicial intervention as an alternative to military action present an unworkable and unrealistic option. Furthermore, intervention by the ICC at this time may antagonize Assad, further entrenching him and his associates and complicating efforts to end the conflict.

Patrick Costello is the associate director of the Congress and U.S. Foreign Policy program at the Council on Foreign Relations in Washington, D.C.