Recently, US Secretary of State John Kerry reported that President Obama had asked his top aides for new policy options to address the situation in Syria. Though Kerry didn't elaborate what exactly was under consideration, one option the White House hasn’t pursued – and should – is to support referring the situation in Syria to the International Criminal Court (ICC).
The Obama administration has repeatedly said that those responsible for serious crimes in Syria must be held accountable. Until now, the US government's approach to justice there has been focused on supporting documentation and investigative initiatives. These efforts are important and will no doubt be vital to future domestic and international accountability processes. Nevertheless, with the Syrian crisis entering a fourth year, it’s long overdue for the United States to raise the stakes and support a concrete accountability measure that could begin work immediately and potentially help deter further abuses.
The horror that the Syrian people have endured over the last three years is well-known. Human Rights Watch has extensively documented abuses by government and pro-government forces and concluded that they have committed crimes against humanity and war crimes. The government continues to carry out indiscriminate air and artillery strikes on residential areas and to arbitrarily detain, torture and extra-judicially execute civilians and combatants. Human Rights Watch has also documented war crimes and crimes against humanity by some opposition groups, including the indiscriminate use of car bombs and mortars, kidnapping, torture and extrajudicial executions.
These abuses take place in a pervasive climate of impunity. Syrian authorities have shown no interest whatsoever in ensuring credible justice for past and ongoing grave human rights crimes. Predictably, the failure to hold those responsible for these crimes to account has only fueled further atrocities by all sides. Indeed, the latest report of the UN Commission of Inquiry on Syria stated plainly that “[t]he warring parties do not fear being held accountable for their acts.”
As a permanent international court with a mandate to prosecute war crimes and crimes against humanity when national authorities are unable or unwilling to do so, the ICC was created to address exactly the type of situation that exists in Syria today. But because Syria is not a member of the treaty that established the court, the United Nations Security Council would have to give it jurisdiction through what’s known as an “ICC referral.”
While a significant cross-section of UN members have expressed support for the court's involvement, including 9 out of 15 current Security Council members, Russia and China are likely to oppose an ICC referral. For its part, the US, one of the most powerful potential proponents of ICC involvement, has not backed a role for the court.
Instead, US officials are exploring options to establish an ad hoc tribunal for Syria despite the practical, political, and financial difficulties involved in starting from scratch to create a complex institution that could deliver credible prosecutions. Moreover, the delay involved in setting up such an entity from the ground up would remove any potential deterrent effect that could be achieved by examining crimes in Syria now, as abuses persist. US officials themselves recognize that such an endeavor takes a long time -- something the Syrian people don’t have.
By contrast, ICC involvement in the course of the ongoing conflict in Syria would send a clear message to all parties that grave crimes will lead to serious consequences. It would put those in senior positions, no matter their political allegiance, on notice that they could be held responsible for crimes they order or commit, or for crimes they fail to prevent or punish, whatever the outcome of the conflict, and that they would face the threat of prosecution indefinitely.
US officials may see supporting an ICC referral as a vain effort given that Russia would be likely to veto such a move in the Security Council. Russia has described the effort to seek an ICC referral as “ill-timed and counterproductive” though a referral would answer head-on Russia’s concerns over rebel atrocities since the court would have a mandate to examine crimes by all sides.
But Russian opposition should not be accepted as a permanent state of affairs nor a justification for policy decisions. As the situation on the ground shifts in Syria, we have seen changes in Russia’s position on chemical weapons and humanitarian access to people in need. Moreover, there hasn't been enough pressure on Russia to change its stance on the court. It would be a mistake to preclude circumstances in which Russia would allow a referral by the Security Council.
No doubt Washington's vocal support for ICC involvement would encourage close allies on the Security Council and raise pressure on Moscow to change its obstructive posture. That could contribute to the momentum needed for action. But more fundamentally, a US decision to get behind an ICC referral would signal that the administration is serious about its commitment to end impunity in Syria and would send a message that accountability must be squarely on the agenda. It would also underscore Washington's commitment to impartial justice.
The Obama administration has afforded Russia much more space by failing, both in Washington and at the UN, to come out in favor of ICC involvement. An early draft of the Security Council resolution on the use of chemical weapons in Syria included an ICC referral, but it was removed apparently at US insistence before even being presented to the Russians during the negotiations on the text. Regrettably, this meant Russia was spared having to justify its opposition to a referral.
US officials may be further disinclined to back a role for the court due to concerns it may complicate the (currently stalled) Geneva talks, and that the court would be an obstacle to any peace deal. However, the record from other conflicts indicates that criminal indictments of senior political, military, and rebel leaders can actually strengthen peace efforts by delegitimizing and marginalizing those who stand in the way of resolving the conflict. For example, the indictments of Radovan Karadzic, the Bosnian Serbs' wartime political leader, and Ratko Mladic, their military commander, by the International Criminal Tribunal for the former Yugoslavia are credited with keeping them sidelined during the Dayton peace talks, which led to the end of the Bosnian war. This was also the lesson from the experience with the former Liberian president Charles Taylor. The unsealing of the arrest warrant against him at the opening of talks to end the Liberian civil war was ultimately viewed as helpful in moving negotiations forward.
To be clear, US support for an ICC referral will not necessarily make it happen nor is the ICC a comprehensive solution to impunity in Syria, but it's a start. The stakes are extremely high -- both for the victims of atrocities there and for global efforts to curtail impunity for grave crimes. At such a moment, substantive action is vital. By coming out in support of an ICC referral as so many countries around the world have already done, the Obama administration would send an important message on how the Security Council should be reacting to the deteriorating situation in Syria. Otherwise, the White House's declarations on justice risk becoming empty rhetoric.