Syria and the International Criminal Court

By Leslie Vinjamuri

Last week, pressure to refer Syria to the International Criminal Court resurfaced, this time with the French at the helm. On Tuesday, the French Ambassador to the United Nations, Gerard Araud, displayed graphic images of alleged torture by the Syrian regime at a meeting of the Security Council. The images were taken from the Qatar-funded Caesar Report, whose authors included Geoffrey Nice, the lead prosecutor at the trial of former President of the Federal Republic of Yugoslavia, Slobodan Milošević. European support for a referral has been brewing for some time. In January 2013, Switzerland led the charge that resulted in a communiqué, signed by 57 states, demanding that Syria be referred to the ICC. Last week these demands became more serious as the EU’s Foreign Affairs Council called, for the first time, for a referral of Syria to the ICC.

The text of this European Parliament resolution is emblematic of a more general trend. The European Parliament called for a “Syrian-led” and “inclusive” political process to bring the “massacre” to an end. This same resolution also called for a referral to the ICC and asserted that “sustainable peace” in Syria would not be possible without accountability. These public demands obscure heated private debates about the impact of international justice on peace talks.

Despite the chequered history of international justice, trials of Slobodan Milošević and former President of Liberia, Charles Taylor have shaped public perceptions and bolstered existing demand that national and rebel leaders responsible for mass atrocities be brought to trial. Even where justice has run up against a brick wall — as with the unenforced arrest warrants against Sudanese President al Bashir for example – pressure for international justice has remained strong. In the case of Syria, neither the chance of actually getting a referral, nor that of actually arresting key perpetrators, appear to dampen European enthusiasm for a referral. Similarly, the recent release of the Commission of Inquiry report on North Korea detailing massive human rights abuses has led to pressure for a Security Council referral of North Korea to the ICC that is virtually unobtainable given China’s likely objections.

Advocates who demand justice during violent conflict are not only interested in accountability. Justice is also promoted as an instrument of peace diplomacy. Pundits and advocates have argued that arrest warrants can marginalize perpetrators of mass atrocities, thereby paving the way for successful peace negotiations. Analysts of international justice often claim that arrest warrants against Bosnia Serb political and military leaders Karadžić and Mladić prevented them from participating in political negotiations and were critical to success in Dayton. But arrest warrants have had a positive effect on peace when they have reinforced a political strategy for ending conflict, whether by design or not. In Bosnia, the decision to single out Milošević as the primary negotiating partner, despite widespread belief of his culpability in directing atrocities, was formulated as part of the so-called Milošević strategy. This strategy emerged long before the 1995 arrest warrants against Karadžić and Mladić were issued. The arrest warrants, in effect, reinforced this negotiating strategy. And, a 1999 arrest warrant for Milošević did not deter negotiators from talking with Milošević even during NATO’s war against Serbia.

In Syria, Americans and Europeans have continued to call for a political solution to the war. But renewed European enthusiasm for a referral of Syria to the ICC comes on the heels of a failed round of peace talks in Geneva and the growing skepticism that a political solution is possible. European governments are also likely aware that the prospect of a Russian veto affords them the moral luxury of being on the right side of both justice and peace, as was suggested here and here. The assurance provided by the anticipated Russian veto enables others to express the desire for a moral sanction, without risking the potential success of an (admittedly blighted) peace process.

The costs associated with a referral of Syria to the ICC may seem low now, but the opportunity for serious peace negotiations could open up if the power balance on the ground changes. It is important to keep that negotiating space alive. Peace is the first necessary step for ending atrocities and ensuring the quality of human rights. Accountability for atrocities is important, but it will come after not before the war is over, and with the compromises that make peace possible.

For now, the symbolic benefits of demanding a referral are low. The American strategy, to support documentation and investigation initiatives, is the right one. As long as atrocities continue, empty demands for a referral are more likely to intensify charges of hypocrisy than to reinforce the moral standing of the West.