Unless you have been living under a rock, you probably know that Qaddafi in Libya is killing Libyans and Assad in Syria is killing Syrians. You might also have picked up on the fact that the international community has responded quite differently to the two situations: Qaddafi earned a UNSC resolution authorizing international intervention and a referral to the ICC while Assad’s actions have earned him some condemnation and ineffectual sanctions, but no official action from the international legal bodies. Does this mean that the crimes against humanity committed by Assad are less worthy of justice than those committed by Qaddafi? Or as Mark Kersten puts it, isn’t a “crime against humanity a crime against humanity?”
Alana Tiemessen wonders why there has been no push for accountability or justice in Syria, particularly when the international community pushed so hard for similar measures in Libya. Interestingly, she notes that even human rights organizations have refrained from calling for utilizing international legal bodies:
The international diplomatic responses illustrate that most of the pressure is directed towards marginalizing Assad and his regime with sanctions, expressions of moral outrage, and encouraging an effective opposition in order to incapacitate and and delegitimize his leadership domestically. Accountability, responsibility, and justice are notably absent from the discourse and policies.
Even notable human rights groups are cautiously realistic about an ICC referral. While Amnesty International called for such action, the main thrust of its recommendations is for the UNSC to forego diplomacy and take stronger measures like an arms embargo and freezing the Syrian regime’s assets. Human Rights Watch makes similar recommendations, but stops short of calling for the ICC and instead presses for more cooperation with the OHCHR’s ongoing investigations and, short of Syrian cooperation, to establish an official Commission of Inquiry. David Bosco, blogging at The Multilateralist, questions HRW on whether it would support an ICC referral. Kenneth Roth responded: “Yes in principle, but as a practical matter it’s not realistically on the Security Council agenda yet….so we’re focusing on the accountability steps that currently are in play.”
There have been rumors that there is an anonymous western country that is funding a fact-finding mission in Syria in order to collect evidence that could potentially be used against Assad in a future ICC trial. Kersten reads this as a lack of political will in support of the ICC; countries that fund the ICC (and then, presumably, support the court) are unable to openly aid the court:
First, the reality that accumulating evidence against alleged crimes perpetrated by Assad’s regime must be done anonymously is sharply symptomatic of the absence of political will and interest in openly investigating alleged acts which, by all accounts, are in need of investigation and international attention. Presumably the Western government funding the fact-finding operation is a supporter of the ICC. What does it say when a champion of the Court can’t support its operations openly? Additionally, there is an obvious cost to the transparency of such an investigation: How are things being investigated? Which facts are being gathered? Who is leading this mission?
The misadventures in Libya have understandably given Assad more leeway that Qaddafi. Despite international intervention that has morphed from humanitarian-based to regime change, sanctions from the UN and an ICC referral, Qaddafi is still retaining power in Tripoli, meaning that all the international efforts to not only end the conflict, but also bring accountability to Libya have been thwarted. The wisdom of bringing Qaddafi to the ICC was questioned at the time, raising questions about the trade-off between justice and conflict resolution. In other words, would an ICC warrant act as an impediment to a negotiated end to the war?
This theory would explain the hesitance of the foreign governments to call for an ICC referral and may explain the anonymous funding of an ICC investigation in Syria. Even without the struggling intervention in Libya, any military intervention in Syria would have been quiet unlikely and sanctions have shown to be ineffective. Without much leverage over the Syrian regime, the international community has perhaps resigned itself to a negotiated exit for Assad as a best case scenario. Referral of Assad to the ICC would inevitably result in a warrant, limiting the likelihood that Assad would agree to self-exile.
So is the lack of judicial intervention in Syria a result of a dearth of other options or, as Kersten argues, a fundamental weakness of the international legal system? The answer is that they are, in fact, one in the same. The fact that the only hope for regime change in Syria depends primarily on a negotiated settlement means that any political will to bring Assad to justice is immediately sapped by how an ICC warrant pushes the Syrian leader into a corner. The ICC, in other words, eliminates other options available to a leader such as Assad or Qaddafi and encourages them to fight on. The inability of the ICC to bring international criminals to justice without the cooperation of individual states that may or may not be a party to the Treaty of Rome means that bringing an indicted leader to justice requires a military intervention, pitting international or domestic forces against a leader with nothing left to lose.
Contrary to what Kersten argues, the weakness of the ICC is not caused by a lack of support for the court itself, but for the utilization of the court in specific situations. Qaddafi’s avoidance of the court in Libya and the international community’s unwillingness to use the court in Syria are clear examples of both sides of this trade-off. In Libya, the international community opted for justice and accountability through the ICC while justice through the ICC has been postponed in Syria in an effort to retain all options to end the conflict. The weakness of the ICC, therefore, is that the court is unable to act as a positive force while violence continues.
Referring Assad to the ICC would in fact be both premature and counterproductive. The use of the ICC during a conflict is a clear sign of political expediency that merely compounds the problem by potentially prolonging the violence. It is hardly surprising, then, that the ICC is perhaps collecting evidence against Bashar al-Assad in preparation for a possible future trial. Of course, the logical issue with a future trial is that any negotiated deal that involves Assad’s exile will inevitably include guarantees of amnesty from both Syria and the ICC.
Photo from World Politics Blog