Against the background of mounting bloodshed and terror, Switzerland has asked the UN security council to refer the situation in Syria to the International criminal court. The aim is to send out an unequivocal message to all parties “to fully respect international human rights and humanitarian law”, a warning that would have “an important dissuasive effect”.
The request is supported by more than 50 countries from every part of the world, including several countries with firsthand experience of systematic human rights abuses and impunity, like Chile and Libya. Britain and France support the initiative, but have not so far been joined by the three other permanent members of the security council. The Russian foreign ministry objects on the grounds that the initiative is “untimely”, and will be “counterproductive” in achieving the immediate goal of ending the bloodshed. China and the United States remain silent.
What factors should come into play in deciding whether to invoke the ICC? Experience is limited but instructive: since the ICC began to operate a decade ago, the security council has referred two “situations” to the ICC, with mixed results. In 2005 Sudan was referred in respect of Darfur; five prosecutions are now pending, including against President Omar al-Bashir for genocide. It is not immediately apparent that the referral has had a significant (or any) dissuasive impact on the ground, or transformed the political situation in Sudan. Bashir remains in office, even if his international travel schedule is somewhat constrained by the fear of arrest.
Six years later the security council referred the situation in Libya, and two prosecutions are pending. Arguably, the effect has been more significant, in delegitimising the Gaddafi regime and paving the way to UN resolution 1973, that authorised “all necessary measures” to protect Libyan civilians. Once subject to an arrest warrant it was likely that Gaddafi would dig in his heels, which he duly did. Whether this was due to the ICC referral cannot be established. While the referral didn’t catalyse a quick voluntary departure, Gaddafi was gone within a year.
There is no reason to imagine that an ICC referral of Syria would immediately cause Bashar al-Assad to stand down. While there is some anecdotal evidence to suggest that some on the frontline may think twice before targeting civilians or engaging in other international crimes, those at the top seem less inclined to turn down the heat in the face of a threat of criminal prosecution. The real significance of a security council referral would be on the legitimacy of President Assad and his regime, and on those who might seek to support it. If Assad was to be indicted, it would be more difficult for Russia to maintain a supportive stance in the face of hardening international public opinion that an arrest warrant would generate.
Russia and China, and possibly also the US, will have another concern. A referral of the Syrian situation followed by an arrest warrant would add to pressure for action, including military action. The pressure on Russia and China would increase, and at some point it might even become intolerable. Russia’s real concern is not an ICC referral as such, but the slippery slope towards a council resolution authorising some degree of military action to which it might lead.
Moreover, a referral to the ICC makes that body a player in the conflict, and that can change the political dynamic, as happened in the 1990s when the security council created international criminal tribunals in the face of inaction in Yugoslavia and Rwanda.
Then, as with Sudan and Libya, international criminal justice became a convenient default option where states were divided. This brings its own problems, as there has been a tendency for governments to take a short-term view on the ICC and other international criminal tribunals.
A moment arrives where action is needed, and in the absence of other possibilities the criminalisation route looks attractive. Once a process is initiated, however, it takes on a life of its own: the security council initiates criminal processes but seems not to be able to end them. Other issues then arise which need to be considered: where might Assad eventually be tried – at the ICC or in Syria? Will countries supporting a referral continue to assist the ICC in investigating and prosecuting? Will all sides of the conflict be investigated and prosecuted, or will the referral lead only to some form of victors’ justice?
Bloodshed will not end the day after an ICC referral, and it might cause the Assad regime to dig in its heels. But it might also change the balance of factors that come into play in defining the nature and direction of the conflict. In the case of Syria, the ICC will not offer a short-term magic bullet or a panacea, but it’s the longer term that matters. It’s a gamble of sorts, but Switzerland and its supporters are betting that Syria is more akin to Libya than Sudan.
Philippe Sands QC is a barrister in the Matrix Chambers and a professor of international law at University College London. He is the author of Torture Team.