The EU's call to refer Syria to the International Criminal Court stands as a reminder of how few options the EU has.
Momentum is building for a concerted European effort to give the International Criminal Court an opening to investigate war crimes and crimes against humanity in Syria. On Tuesday 15 April, France convened an informal meeting of the UN Security Council to examine thousands of photographs apparently showing victims of torture by the Syrian regime, smuggled out of the country by a former military police photographer. The session was part of a French campaign to build support for a Security Council resolution referring the situation in Syria to the ICC. Because Syria is not a party to the Court, the ICC could only gain jurisdiction through a Security Council vote.
The French UN Ambassador Gerard Araud confirmed at a press conference after the meeting that his country intends to present a draft resolution to the Security Council in the coming weeks. He said France “will not rush because we want to discuss it with Council members who are still hesitating. We will take our time." It is not hard to work out which countries he was referring to: since the Syrian civil war began in 2011, Russia and China have vetoed three Security Council resolutions condemning the actions of the Syrian regime. But the French ambassador argued that an ICC referral should not be seen as a politically-motivated step, since the Court would investigate crimes committed by all sides in the conflict.
Coinciding with the French move, the EU’s Foreign Affairs Council for the first time called last week for the Security Council to refer Syria to the ICC. Earlier conclusions from EU foreign ministers have talked only of a “possible referral” or recalled that the Security Council “can refer” the situation in Syria to the ICC. The new united EU position may reflect in part a change of view on the part of Sweden. All other EU members signed a letter drafted by the Swiss Federal Department of Foreign Affairs in January 2013 that called for a Security Council referral – but Sweden withheld its endorsement, apparently reflecting concerns on the part of its foreign minister Carl Bildt that the involvement of the ICC could complicate the search for a negotiated settlement.
The case for a referral of the situation in Syria is compelling. The death toll in the conflict has passed 150,000, according to the Syrian Observatory for Human Rights. The UN High Commissioner for Human Rights Navi Pillay recently issued a paper detailing extensive evidence of torture in Syrian government detention centres. The Commission of Inquiry on Syria established by the UN Human Rights Council in 2011 has published seven in-depth reports detailing evidence of a wide range of crimes, and has developed lists of individuals who could be prosecuted. Given the power of the Security Council to refer cases to the ICC under the Court’s statute, it is hard to imagine a case where referral would be more clearly justified.
Nevertheless there remains a tension in the European position to call for a referral of Syria to the ICC while at the same pressing for a negotiated settlement to the conflict. Many EU diplomats are willing to concede that the involvement of the ICC in Syria could make a political solution to the conflict more difficult, since it would reduce the likelihood that President Assad would leave office and potentially leave himself open to prosecution. However, officials tend to argue that their support for the principle of accountability overrides any additional complications that a referral could produce. The complexities of this position have led some people to speculate that states calling for a referral may in the past have counted on the low chances of getting a resolution through the Security Council to avoid the potential difficulties that the involvement of the Court could cause. Louise Arbour, former UN High Commissioner for Human Rights, said in February 2014 that “the political paralysis in the Security Council [regarding an ICC referral] may in fact be a relief to those seeking a political solution to the conflict”.
For similar reasons, it is not clear that a referral of the situation in Syria would be good for the ICC. On the one hand, the failure to obtain jurisdiction over a situation with such an evident level of atrocities could diminish the relevance of the Court. Against this, however, there is a danger that even after a referral, states would be only too happy to endorse a peace agreement that effectively guaranteed that high-level regime members remained immune from any immediate likelihood of prosecution. The ICC could be marginalised by the failure of states to support it through pressing for Syria and other states to cooperate once a referral had taken place, especially if it seemed that some kind of peace agreement was on the cards.
Now, however, these concerns seem increasingly irrelevant, for the reason that no diplomatic solution to the Syrian conflict that would involve a political transition is in sight. If the prospects are for the survival of the Assad regime and its refusal to make any real concessions to rebel groups, there is nothing to lose from an all-out effort to push for accountability for the atrocities that have taken place. In any case Russia is likely to continue opposing an ICC referral – but even if it were to go through, it would cause no complications for peace negotiations because no serious negotiations appear likely for the foreseeable future. But for the same reasons, while the ICC might eventually get its hands on some of those it charges, that would seem in the case of senior regime or military figures to be a distant prospect.
A role for the International Criminal Court in Syria seems fitting given what has happened there, but it will not change the dynamics of the conflict. Those responsible for the terrible crimes that have evidently been committed in Syria, from both the government and rebel side, richly deserve to be held accountable. The new European push to give the ICC a role in Syria seeks to reassert that fundamental truth – but at the same time it stands as a reminder of how few other options the EU has to promote change in Syria or bring the conflict to an end.
The European Council on Foreign Relations does not take collective positions. This commentary, like all publications of the European Council on Foreign Relations, represents only the views of its authors.