Would the ICC help in Syria?

After several months of relative inattention to the issue, there’s been a renewed push in the past week to get the International Criminal Court (ICC) involved in Syria. The centerpiece of that effort is a letter drafted by the Swiss government and endorsed by dozens of other countries. Recognizing that the court currently lacks jurisdiction, it calls on the UN Security Council to refer the Syria violence to the Hague-based court, which can prosecute genocide, crimes against humanity, and war crimes. Leading human rights organizations have thrown their weight behind the initiative.

For all the support the Swiss missive has generated, the chances of an ICC referral still look slim. Russia, China and the United States, whose acquiescence is essential, have not backed the call. There’s no evidence I’m aware of that they’re shifting position on the issue. Their reasons for opposing an ICC role are likely quite different. Russia has consistently backed the Assad regime and knows that an ICC investigation would likely focus on regime higher-ups. China is generally skeptical of the court and intervention in what it sees as internal affairs; Beijing only reluctantly agreed to referrals for Sudan and Libya.

The U.S. decision not to openly support a referral is the most interesting. The Obama administration has taken several steps to improve cooperation with the court and voted for the Libya referral (the Bush administration had abstained on the 2005 Sudan referral). However it appears that the speed with which the ICC prosecutor moved in the Libya case unnerved some administration officials, who worried that the indictments against Moammar Gaddafi, his son, and the regime’s intelligence chief  might foreclose a negotiated solution. That experience is likely influencing the administration view on Syria. 

With three of the Security Council’s permanent members unpersuaded, the question of an ICC role in Syria is an academic one. But it’s an important academic one, and the Swiss effort has shed some light on what advocates of international prosecutions hope they would achieve. Below are several of the anticipated benefits that have been discussed:

1. An ICC role would deter Syrian government and rebel leaders from committing further crimes. The Swiss letter anticipates that a referral would have "an important dissuasive effect." This expected benefit–often discussed in terms of the "signal" that a referral would send to the warring parties–has been implicit in most of the commentary.

2.   An ICC role would encourage greater discipline in the ranks of fighters on both sides. This anticipated effect is somewhat distinct from the deterrent impact on leadership figures. It suggests that local commanders might take greater care in supervising operations to ensure that they don’t become the focus of investigations. A commentary by the foreign ministers of Austria, Slovenia, Ireland and Denmark (the "ASID commentary") predicted that "a referral to the ICC would make clear to every fighter on all sides of the conflict that the gravest crimes will eventually be punished."

3. The prospect of ICC prosecutions would help prevent usage of chemical or biological weapons. The legal scholar Jennifer Trahan has argued that the use of these weapons would "raise criminality to a new level that would invite high level prosecutions."

4. An ICC role would encourage defections from the Assad regime. The ASID commentary argued that an international investigation would "give the members of the al-Assad regime a further reason to question their allegiance."

5. ICC prosecutions would marginalize abusers and thereby make a negotiated solution more likely. The ASID commentary included this analysis: "As we saw in other crises, parallel political and judicial processes are mutually supporting. There is no decision to be taken here between either peace or justice – a sustainable, long-term solution requires both." For a further elaboration of this argument, see last week’s Human Rights Watch press release.

These claims all come embedded in a broader, principle-based argument: that doing justice is the right thing. But to the extent advocates lean on arguments about the expected consequences of prosecutions, they invite scrutiny based on our growing experience with international justice initiatives. In a later post, I’ll try to address these individual claims in more detail, but I think it’s fair to say that the evidence for each of them is at best mixed and in several cases based on little more than the hope that beneficial consequences will follow from good intentions.