What role for the International Criminal Court in Syria?


As the United Nations Security Council prepares to negotiate a resolution endorsing the Russian-U.S. agreement on dismantling Syria’s chemical weapons, there is a question about whether it should contain any provision on accountability for past crimes. Since the chemical weapons attack in the Damascus suburb of Ghouta on 21 August, several European countries have argued for Syria to be referred to the International Criminal Court as an alternative to a US-led military strike. Two French-drafted resolutions circulated in the Security Council in the last week contained a provision referring Syria to the ICC alongside steps to ensure that Syrian chemical weapons are placed under international control and then destroyed.

The question of a referral arises because Syria is not a party to the Court, launched in 2002 to prosecute individuals responsible for genocide, crimes against humanity and war crimes. Under the ICC’s statute, the Court can only gain jurisdiction over non-party countries if the Security Council gives it authorisation. The Security Council has twice referred situations to the ICC – in the cases of Darfur and Libya. Last year 57 countries led by Switzerland delivered a letter to the Security Council asking it to refer the situation in Syria to the ICC.

It is clearly desirable that those responsible for the chemical weapons attack – as indeed for the many other international crimes that have evidently been committed during the conflict in Syria – should face justice. Many people will sympathise with General Salim Idris, head of the opposition Syrian Military Council, who complained of the Russian-US deal in Geneva that “a crime against humanity has been committed, and there is not any mention of accountability”.

Nevertheless there are reasons to think carefully about any attempt to include an ICC referral in the Security Council’s incipient chemical weapons resolution. A decision on whether to pursue a referral at the UN should be taken on the basis of a clear assessment of its objectives and likely consequences, rather than simply on a generalised belief that accountability for serious crimes is in principle a desirable good, however true that is.

Three questions in particular should be considered: Would a resolution endorsing the Geneva chemical weapons agreement be the right vehicle for an ICC referral? What effect might a referral have on the evolution and possible eventual settlement of the conflict in Syria? And would a referral ultimately help the cause of justice and the credibility of the ICC itself?

Since John Kerry and Sergei Lavrov reached their agreement in Geneva, French officials have continued to insist that the Security Council should address accountability for the Ghouta attack alongside any proposal to prevent further use. While prevention and accountability are both important objectives, it is not clear that there is anything to be gained from linking them. Russia and China have consistently opposed any attempt to give the ICC jurisdiction over Syria during the period since the conflict started. If an agreement that would lead to the dismantling of Syria’s chemical weapons is desirable in itself, it would be counterproductive to allow any disagreement over the ICC to hold it up.

The fact that a referral to the ICC is seen by some people as a necessary complement to the dismantling of Syria’s chemical weapons testifies to an ambiguity that was inherent in the military strikes mooted by the United States and France as a response to the 21 August attack. Although the prospective strikes were billed as a preventive action to deter future chemical weapons use and degrade President Assad’s capabilities, they were also implicitly retributive. But punitive strikes would be impossible to justify under international law, so this element was played down in the public justifications that were offered. Nevertheless it accounts for the feeling, evident in France’s response to the Geneva deal, that President Assad is being allowed to “get away” with the large-scale use of chemical weapons. But such a sentiment should not obscure the fact that disarmament is a better way of disabling Syria’s chemical weapons than deterrence through a military attack.

Of course, it may be that Russia and China are willing to drop their objection to an ICC referral now, or that it can be advanced through a separate resolution at some point. But that would still leave other questions about how the involvement of the Court would affect the dynamics of the Syrian conflict and the future credibility of the ICC.

Some advocates of an ICC referral argue that it could have a beneficial effect on the course of the conflict by deterring future war crimes (for instance, the Court’s former prosecutor Luis Moreno-Ocampo has made this argument).  Others believe that in the long term, peace and reconciliation in Syria will only be possible if there is justice for the atrocities that have repeatedly marked the country’s civil war. Others again maintain that a referral should be made simply on the basis of the scale of the crimes that have been committed: the international community should not allow impunity for the authors of the Ghouta atrocity and other terrible war crimes.

But against these arguments, there may also be a risk that bringing the ICC into the Syrian conflict could make it more difficult to achieve a negotiated solution, by removing the incentive for President Assad and his regime to sign a peace agreement. The United States has been reluctant to push an ICC referral for precisely this reason, as former US Secretary of State Hillary Clinton explicitly acknowledged. In that case, the EU and the United States would have to balance their support for accountability with their desire to bring the war in Syria to an end.

One way to try to predict the likely impact of an ICC referral in Syria is to examine the history of past cases in which criminal investigations have been launched during conflicts, as well as those where the search for justice was deferred until peace agreements were reached. ECFR is currently pursuing a research project on this subject, which will conclude within the next few months. Without pre-judging the project’s findings, it seems evident that any decision about a referral should be made in the context of a broader vision of how the conflict is likely to end.

After Libya was referred to the ICC in 2011, some Western officials admitted to a kind of “buyer’s remorse”, worrying that charges against Colonel Gaddafi would make a negotiated settlement harder to achieve. In the end, the question was academic as the conflict ended in a rebel victory. However Slobodan Milosevic agreed a ceasefire in Kosovo after being indicted by the Yugoslavia war crimes tribunal, and Charles Taylor stepped down from power in Liberia after being indicted for war crimes (albeit with a promise from Nigeria to give him a refuge from justice). In both these cases, the targeted leaders believed they could avoid facing justice through a timely deal, though they both ended up in the dock as circumstances changed.

In the case of Syria, it seems certain that any peace deal will require a political transition plan in which President Assad offers at some point to leave office voluntarily, while other members of his regime retain some role in the transitional political settlement. It is hard to believe that Assad will not be in a strong enough position to demand security from prosecution, either within Syria (which could put the country at odds with the ICC) or abroad, perhaps in a country that is not a party to the ICC. Western officials who favour referring Syria to the ICC should at least think carefully about how such an agreement will proceed, and what role the West could have in supporting it, if Assad and some of his senior officials were facing arrest warrants for war crimes and crimes against humanity.

Finally it is worth considering whether being given jurisdiction over Syria would necessarily be beneficial for the ICC itself. There is a default assumption among most supporters of international justice that referrals from the Security Council in cases of widespread atrocities enhance the credibility of the Court. But the ICC’s relationship with the Security Council is a complex one: the Security Council is an explicitly political body, while the ICC’s credibility depends on maintaining a certain detachment from political considerations.

Former ICC prosecutor Moreno-Ocampo has suggested a forward-looking referral whereby the Court would gain jurisdiction over future crimes if a peace deal is not signed by a fixed date. Such an arrangement might boost the deterrent power of an ICC referral, but at the price of making the ICC appear as a tool of the great powers – at a time when three out of the five permanent members of the Security Council (China, Russia and the US) are not themselves party to the Court. Another experienced prosecutor, Louise Arbour (former chief prosecutor of the Yugoslavia tribunal) recently announced that she had changed her mind on Security Council referrals and now believed that they were harmful to the independence of the Court.

The other problem for the ICC is that countries that favour referrals at the time may not feel bound the support the Court in their future dealings with the country involved. In the case of Darfur, while Western states have limited their dealings with the country’s president, Omar al Bashir, they have done little to try to enforce arrest warrants or force Sudan to deliver suspects for trial. In Libya, Western countries are obviously reluctant to use any of their credit with Libyan authorities to pressure them to deliver Gaddafi’s son and former intelligence chief to the ICC, as the Court has required. With Kenya’s president and vice president also now facing trial at the ICC, European states and the US may be confronted with another test of their commitment to the Court if the country – an important Western ally in counterterrorism and other areas – decides to cease cooperation with the Court.

Before pushing for a referral, Western countries should therefore review the obligations it would incur from the Court’s involvement in Syria and decide whether it is ready to take them on. A referral that the Court’s backers subsequently try to wash their hands of might make Western countries feel that they had made a gesture towards justice, but at the cost of undermining the credibility of the ICC itself. By its nature, the ICC’s involvement is something that cannot be retracted once it is launched. That is not to say that a referral of Syria to the ICC would necessarily be a mistake – but it does mean that it should not be undertaken without a clear understanding of everything that it would entail.


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