August 6, 2012

The International Criminal Court could play a key role in securing justice over serious crimes perpetrated in Syria's conflict. But this in turn requires bold action from the European Union, say Lotte Leicht & Clive Baldwin.

The European Union has long professed its unwavering commitment to fighting impunity and pursuing international justice. It has backed this claim by portraying itself as the staunchest supporter of the International Criminal Court (ICC). In relation to Syria, however, the EU has in both respects failed to practise what it preaches, For, faced with crimes against humanity and war crimes in Syria that show no signs of abating, Europe's commitment to justice has proved at best tepid and inconsistent.

At least ten EU member-states are in favour of the referral of the Syrian situation to the ICC by the United Nations Security Council. This is the only realistic way for the court to get jurisdiction over the crimes being committed in Syria. But EU states are doing very little to make such a referral a reality.

In fact, behind the scenes, European diplomats and ministers argue that pursuing justice will be an obstacle to any peace deal; that involving the ICC will cut off potential exit-routes for President Bashar al-Assad and other senior Syrian officials; and that implementing criminal justice will complicate any political transition.

The same arguments were made, and discredited, during the wars of a disintegrating Yugoslavia in the 1990s. The notion that pursuing justice would interfere with a possible peace settlement was repeatedly heard over the Bosnian war of 1992-95; for example, policymakers and officials opposed the indictment of the military and political leaders of the Bosnian Serbs, Ratko Mladic and Radovan Karadzic, on the grounds that this would damage the Dayton negotiations designed to bring the war to an end. During the Kosovo war in 1999, they opposed the indictment of Serbia's president, Slobodan Milosevic, on the grounds that this would make a settlement impossible.

In both case they were wrong - peace came, but so did justice. Instead of being seen as necessary participants in and contributors to the Bosnian peace process, Karadzic and Mladic became pariahs and fugitives. In Kosovo, an agreement to withdraw Serbian troops from Kosovo was reached days after Milosevic’s arrest-warrant was issued.

The record from other conflicts confirms that indictments of senior political, military and rebel leaders can actually strengthen peace efforts by delegitimising and marginalising those who stand in the way of a conflict's resolution. For example, the unsealing of the arrest-warrant for the former Liberian president Charles Taylor at the opening of talks to end the Liberian civil war was ultimately viewed as helpful in moving negotiations forward. By the same token, in countries such as the Democratic Republic of Congo and Sudan the very failure to hold those responsible for the most serious crimes to account has contributed to further abuses.

An issue of responsibility

This historical experience is relevant to Syria today. both in practice and in principle. Many suggest that Bashar al-Assad’s departure from Syria is a key element of a possible solution, but in that case a referral to the International Criminal Court would not prevent the president (and any other senior colleagues) from seeking a "safe exit" were they to be indicted. However, ICC states-parties are bound to honour any arrest-warrant issued by the court, but many also have "universal-jurisdiction" laws allowing them to pursue people implicated in serious crimes who enter their countries. So, any Syrian indictees responsible for well-documented crimes in Syria who seek refuge from prosecution in an ICC state would risk prosecution - with or without an ICC referral. Moreover, repeated offers of a "safe exit" to Assad while his armed forces and militias continue their bloody assault will hardly deter crimes.

A wider lesson is that justice and the rule of law should not be postponed during a transition from conflict to peace or from dictatorship to democracy. Some of the most serious crimes take place when the rule of law breaks down during violent transitions. Syria, after decades of dictatorship, is unlikely to be able quickly to set up a domestic judicial system that can or will address these crimes. In such circumstances the ICC can play an important role as the only independent judicial body that can investigate and, quite possibly, deter further serious crimes - and identify and charge the key perpetrators, no matter what side of the political divide they are on.

In eighteen months of violence in Syria, opposition groups report that more than 17,700 people have been killed and hundreds of thousands displaced, while even more are suffering the dire consequences of the armed conflict. The stakes are now extremely high - both for the victims of atrocities in Syria and for global efforts to curtail impunity for grave crimes. At such a moment, substantive international action - rather than lofty rhetorical commitments or declarations - is vital.

In particular, the European Union’s twenty-seven member-states could come together publicly to work toward a referral of Syria to the ICC. The EU will only be able to rally others if it can reach a collective position. In turn a comprehensive and global coalition of states is necessary to press Russia and China, as members of the UN Security Council to act, even to consider responding.

If a convincing case is made by the EU (including the United Kingdom) that the ICC - as an independent and impartial judicial institution - will examine actions by all sides to the Syrian conflict, this can go a long way toward countering Russian and Chinese objections that Security Council measures on Syria would be biased. An inclusive effort to seek justice and accountability over war crimes and crimes against humanity committed in Syria is long overdue, and the ICC can play a pivotal role. But only if it is allowed to do so.

Clive Baldwin is Senior Legal Advisor at Human Rights Watch. Lotte Leicht is European Union advocacy director and director of Human Rights Watch's Brussels Office.