By Diane Orentlicher
Demanding "accountability for those who would use the world's most heinous weapons against the world's most vulnerable people ," the Obama administration has forcefully argued that Syria must be punished for gassing more than 1,400 civilians to death in a single day — an act President Barack Obama called "a crime against humanity, and a violation of the laws of war" in his speech Tuesday night. Leaders around the world have also denounced Syria's "war crimes" and its "crime against civilization." But if they seem to be making the case for prosecutions, that option has, in fact, received scant serious attention — despite French and British efforts to press the issue.
Syria's unexpected agreement to place its chemical weapons under international control may seem to obviate the need for new policy options, assuming the devilish details of this initiative can be nailed down. But seeking justice will eventually become a key dimension of U.S. and international policy responses to Syrian atrocities — not least because Syrians will expect some measure of justice for the depredations they have endured.
Though prosecutions wouldn't deal an immediate blow to Syria's chemical weapons capacity, they can help restore a global taboo that has been dangerously breached, while also honoring the suffering of thousands of Syrian victims. Notably, the International Criminal Court last year acquired explicit jurisdiction over the war crime of using poisonous gas in the kind of conflict underway in Syria. Bringing this charge against Syrian perpetrators would bolster other efforts to restore the taboo against use of weapons of mass destruction.
The reasons why the justice option has received little attention to date offer important lessons from past experience about what war crimes tribunals can deliver; when they can make a real contribution, and the fragility of the one court potentially able to address atrocities anywhere in the world — the International Criminal Court.
These lessons should shape our response to the monstrous crimes in Syria. Not just the appalling use last month of chemical weapons, but also the monstrosities that have gone on for more than two years. For our response provides an opportunity to make much-needed course corrections in our approach to global justice.
What global justice can do for Syrians — and what it cannot
Alas, past experience gives little reason to believe that threatening prosecutions would have a direct, immediate impact in ending ongoing atrocities in Syria. Atrocities did not end in Bosnia when the United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) in May 1993 — they ended when the United States and its North American Treaty Organization allies took military action in the wake of the Srebrenica genocide, more than two years later. Nor did the ICTY's existence stop Serbian atrocities in Kosovo in the late 1990s. Another U.S.-led NATO intervention did that.
This is not to say that war crimes tribunals have no deterrent effect. There is plenty of anecdotal evidence that the ICC and other tribunals have made both senior officials and low-ranking soldiers think twice about committing atrocities.
For example, then-President of Senegal Abdoulaye Wade reportedly told aides last year that he would not use violence to enforce what would have been a false claim of winning the presidential election lest he face charges before the ICC — which had happened to former Ivoirian president Laurent Gbagbo. Instead, Wade accepted electoral defeat. International indictments of other leaders who were considered untouchable, like former Liberian president Charles Taylor and Serbian leader Slobodan Miloševic, helped marginalize them, easing the way to democratic transitions.
It is difficult, however, to identify a situation in which the initiation of an international criminal process significantly altered the course of mass atrocities well underway.
Yet criminal prosecutions can advance important goals. Trials and other initiatives, such as reparations, would provide some measure of justice to the Syrians haunted by the inhumanity they have endured and recognition of the harm they suffered. Justice can also serve to re-affirm victims' humanity.
If this sounds like a vague contribution, it may be invaluable to victims. Bosnians, who like Syrians, have been haunted by the trauma of a years-long descent into the abyss, have repeatedly stressed to me how crucial justice has been for them — even as they cite a litany of criticisms of the ICTY.
As the ICTY has shown, international tribunals can also catalyze domestic courts to step up their game in ending impunity for atrocious crimes. Unfortunately, the International Criminal Court has not seen its job as helping local courts develop stronger capacity to provide justice — an approach that may be due for mid-course correction.
What kind of justice?
If justice is to play a role in addressing Syrian atrocities, what model might be most effective? The obvious is the ICC, which was created to address "the most serious crimes of concern to the international community" — precisely the kind of outrage perpetrated in northern Damascus when hundreds of civilians died a tormenting death from chemical weapons. Because Syria is not a party to the ICC's statute, however, the court could take up an investigation only if the U.N. Security Council refers a "situation" in Syria to the court. Many countries and human-rights advocates had been urging the Security Council to do this long before last month's use of chemical weapons.
Those committed to the ICC's success have other reasons to support a Syria referral that transcends this context. Referring a Middle Eastern country to the court would answer some African leaders' debilitating accusations that the ICC is "only for Africans."
Though the court's relationship with the African Union (AU) has been fraught for years, it has deteriorated markedly since March. That month, two men the ICC is prosecuting for alleged roles in violence after Kenya's 2007 presidential voting were elected as president and deputy president of Kenya. Uganda's president — who gave the court its first set of cases when he self-referred the situation in his country to the ICC — used the Kenyans' inauguration to denounce the "arrogant actors" from the court who carried out "careless and shallow analysis."
Soon after, the AU chairman concluded a summit by accusing the ICC of conducting "some kind of race hunting" against Africans. This month, Kenya's parliament passed a motion urging the government to withdraw from the ICC's statute. If the government followed through, Kenya would be the first country to do this, dealing a major blow to the court's credibility.
A referral of the Syria situation would also answer a critique of the Security Council that has tarnished the ICC's credibility — that the council acts selectively when referring situations to the court. To date, the council has referred only two, both in Africa. The charge of selectivity is often framed as a rhetorical question — Why Libya but not Syria? — that a Syria referral would finally answer.
Of course, shoring up the ICC's legitimacy is not a reason in itself to support a Syria referral. But a referral justified in its own right could help reverse trends that threaten the efficacy of a court on which much of the world depends to ensure accountability when states are unable to deliver justice for horrific crimes.
Is an ICC referral possible — or even desirable?
One reason we have not heard more talk about an ICC referral has been the expectation of a Russian and Chinese veto. Indeed, U.S. Ambassador to the United Nations Samantha Power this week told NPR that Russia has rebuffed other countries' efforts to secure a referral.
Yet Russia's new initiative to dismantle Syria's chemical weapons arsenal shows it is highly motivated to support alternatives to U.S. military action. Unlike U.S. strikes against Syrian targets, an ICC referral would leave the determination of responsibility for last month's poison gas attack to the court. This would counter a key Russian argument — that we should not take military action against Syria because we do not know who is responsible for that attack (a stance Russian maintains — even though Syria has finally acknowledged it has chemical weapons).
An ICC referral would also have to overcome other grounds of skepticism. First is a concern that this would provide further incentive for Syrian President Bashar al-Assad to cling to power, while also injecting into continuing diplomatic initiatives an independent actor that diplomats cannot control. Some say this happened when the ICC brought charges against Muammar Qaddafi based on a Security Council referral (though I have seen scant evidence that Qaddafi was prepared to end his violent rampage but for the prospect of prosecution in The Hague).
Recognizing this concern, the ICC's former prosecutor and others have said that the Security Council could, in effect, warn of a referral if Assad does not meet a specific goal — such as complying with a commitment to place Syria's chemical weapons stockpile under international control by a date certain. While this approach could harness the court's potential deterrent power, it would draw objections from those troubled by what they see as the council's instrumentalization of the court. Many would find it abhorrent, too - to promise impunity for the carnage so many Syrians have already suffered if Assad pledges to behave going forward.
While ICC advocates could be expected to support a Security Council referral, past experience may cause some to hesitate. Court supporters have grown increasingly concerned about conditions - included in past referrals at U.S. insistence, which they say compromise the court's credibility. One such provision prohibits use of U.N. funds to support any of the ICC's considerable expenses as a result of the referral, all but ensuring the court will have to cut corners in its challenging investigations even as the Security Council increases its workload.
Also much-criticized has been the council's failure to demand that all states cooperate with the investigations. The Security Council has required only that the state in which atrocities occurred cooperate with the ICC, while "recognizing" that those not parties to the court's statute "have no obligation" to do so.
In contrast, the Security Council resolutions establishing tribunals for the former Yugoslavia and Rwanda have required all states to cooperate — an indispensable aid to these panels' work. Further ground for hesitation may arise from the council's failure to enforce the obligations it has imposed on the two countries required to cooperate with the ICC in previous referrals, Sudan and Libya.
Recent experience with the court's Libya prosecutions has raised a different concern — that a Syria referral could tie the hands of a future, post-dictatorship Syria, whose citizens may have trouble convincing the court it can render credible justice at home. The transitional government in Libya understandably wants to prosecute the two surviving suspects the ICC has brought charges against. Even with an ICC ruling that Libya must surrender one of them, Saif al-Islam Qaddafi, Libya continues to insist it should be allowed to bring him to justice itself. This standoff is still resolved, but one thing is clear: Governments are more mindful now of the extent to which ICC jurisdiction can constrain the choices of a post-dictatorship society.
A Regional Court for Syria
These considerations hardly doom a Security Council resolution referral, particularly if lessons learned are applied going forward. But other alternatives may offer distinct advantages — and challenges, too.
Prominent human rights advocate Aryeh Neier has argued that the Arab League should establish a court to prosecute Syrian war crimes. Some aspects of his now year-old proposal are dated but his core idea has merit: A regional court might stand a better chance of enjoying legitimacy in Syria than an international court imposed by the Security Council, three of whose permanent members have not agreed to allow their nationals to be subject to the court's jurisdiction (a point repeatedly made by critics of Security Council referrals).
This approach raises its own challenges, however, including the time and cost of creating a new institution rather than extending the reach of a standing court. Legally, the greatest challenge would be identifying a basis for jurisdiction over Syrian atrocities in the face of Syrian opposition — though Syria's stance could change in a post-Assad future. Such a court might ultimately best operate in tandem with finite ICC prosecutions — continuing the process of justice that the ICC could begin sooner.
Among other potential advantages, a regional tribunal could apply lessons learned from the work of older international courts. It could, for example, include Syrians among its judges and prosecutors. One vital lesson is that international and regional tribunals can make an enduring contribution to human rights by bolstering local courts' capacity to protect human rights going forward. But this would require a serious commitment by the tribunals and their sponsors.
Indeed, the best path to justice in post-Assad Syria would be credible prosecutions in Syrian courts. Any other path taken until that is possible should be designed with this ultimate objective firmly in mind.
(Diane Orentlicher, professor of international law at American University, served as Deputy for War Crimes Issues in the State Department from 2009 to 2011 and as United Nations Independent Expert on Combating Impunity.)