A major undertaking of the victorious powers in World War II was to impose individual criminal accountability upon political and military leaders for alleged crimes committed during wartime before a tribunal that gave those accused a fair opportunity to present a defense. This application of this idea of accountability to surviving German and Japanese leaders at trials held in Nuremberg and Tokyo was hailed at the time as a major step in the direction of a “just peace”.
International law was treated as binding for sovereign states and those who represented the government. At the same time, there were skeptics who whispered that this was justice for the victors. And there were intimations that this “Nuremberg-type experience” – trials for the Nazi Germany leadership – would always be reserved beneath an invisible sign reading “only losers enter here”.
Against such a background, the attempts to hold individuals, whether acting on behalf of governments or insurgencies individually accountable for war crimes seems like a core element of global justice. Since the International Criminal Court (ICC) was established in 2002, an institutional mechanism exists on a global level by which to apply international criminal law in an objective and authoritative manner.
Furthermore, there exists convincing proof that horrifying atrocities have been committed in the course of the Syrian civil war, by the government and armed forces of Syria, and by various factions among the fragmented opposing rebel forces. In these circumstances, it would certainly seem appropriate to charge government officials, including military commanders, and members of the opposition, with such crimes.
France presented such a resolution to the United Nations Security Council or UNSC, on May 22. It received an affirmative 13-2 vote, yet it failed to pass because the two dissenting votes were cast by Russia and China, countries enjoying veto rights. According to the Russian delegate, the French initiative was nothing more than a publicity stunt that would hamper, or even preclude, the difficult search for a diplomatic end to the strife.
Western reaction, significantly endorsed by the United Nation Secretary-General’s office, declared that such a use of the veto was “irresponsible”, even “disgraceful”. It amounted to a virtual grant of impunity to the very worst perpetrators of state crimes active on the planet at this time.
Both these contrasting reactions can be partially appreciated despite seeming to contradict one another. The Russian reaction reflects a view that the main motivations for such a resolution is to weaken the legitimacy of the Damascus regime in the midst of an unresolved struggle for control of the country, and in this sense is better interpreted as a propaganda move rather than as a genuine attempt to promote criminal justice.
Also, it has been Moscow’s insistence all along that the only way to end the violence in Syria is by way of diplomatic compromise. Thus, any attempt to indict Syrian leaders as war criminals will further weaken the already dim prospects of resolving the conflict by diplomacy.
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In response, those governments urging criminal prosecutions at this stage claim frustration, even desperation. They claim that diplomacy has been repeatedly tried and failed, including reliance at the highest levels on the good offices of the UN through the efforts of special envoys, first, Kofi Annan and then Lakhdar Brahimi.
The supporters of the French resolution argue that activating the ICC will produce public indignation, swing support to the insurgents’ side, and produce a more politically and morally desirable end to the conflict by discrediting the Damascus regime and empowering the opposition within Syria, the region and the world. It is difficult to reach a clear conclusion as to which side is right, but there are a series of considerations that should be taken into account, and add weight to those who voice skepticism about the French initiative.
We must also consider the issue of timing: To use the ICC in the midst of an ongoing civil war in Syria is to take sides, and thus interfere with an ongoing internal struggle for control of the state and society. As such, it interferes with the right of self-determination enjoyed by the people of Syria. Yet since there has been considerable interference through funding and material support on both sides, the preconditions for self-determination do not exist, making an end to the devastating violence a primary goal. This makes it seem that the most important question to ask is whether criminal indictments while the war rages is likely to hasten or delay an ending of the conflict. And since neither side has shown the ability to prevail, the Russians seem right in their insistence that diplomacy is the only path forward.
As for the issue of fairness: Is justice served when the authority of the ICC is invoked as a political instrument to influence the outcome of a civil war? There are reasons to worry about double standards. Why was there never any initiative to pursue leaders of the United States and the United Kingdom during the course of the Iraq War?
This question takes on greater weight when added to earlier criticisms of the one-eyed gaze of the ICC, which has pursued a variety of sub-Saharan African leaders, but few others. It is also relevant to recall that the Serbian leader, Slobodan Milosevic, was indicted in the midst of the Kosovo War in 1999 undertaken without UN authorisation by NATO, seemingly motivated at the time by efforts to strengthen the justness of the legally controversial military effort to end Serbia’s administration of Kosovo.
In effect, the criticism of the Nuremberg trials apply – only losers and the weak are accountable.
On the issue of feasibility: The likelihood of obtaining personal jurisdiction in relation to the principal perpetrators of war crimes in the country, especially over Syrian President Bashar al-Assad and entourage, makes the claimed rationale for seeking indictments at this stage suspect.
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Proceeding now seems to have, as its main justification, a means to give greater weight to the position of pro-insurgency governments that something more must be done to stop the crimes of the Assad-led government. Reinforcing this reasoning is a consensus that since military intervention is not feasible and diplomacy has failed, the only option left is to charge Syrian leaders with crimes against humanity.
The ICC provides a venue to mobilise pressure for giving additional help to the rebels, and at the same time, deprives the Damascus government of whatever is left of its legitimacy. The fact that the French resolution also calls for an investigation of possible crimes against humanity committed by the opposition, is nevertheless certain to receive far less attention had the UNSC given the ICC the green light.
There is a serious question mark over whether it is appropriate to use the ICC to gather evidence and prepare an indictment in circumstances where prospects of prosecution are remote, and an ongoing struggle for control of the Syrian states remains unresolved. Such limitations also would seem to underscore the issues of timing, and making recourse to the ICC not only ineffectual as a means to pursue criminal justice. But it is also damaging to the credibility of this fledgling international institution that was created – it should be remembered – to overcome the vagaries of geopolitics, and not to serve as their instrument.
In conclusion, there are two intertwined concerns. Firstly, whether seeking the criminal indictment of Syrians accused of crimes against humanity is on balance, helpful or harmful. This issue should be evaluated in relation to resolving in the right way the devastating conflict in Syria.
And secondly, whether such recourse to the ICC would strengthen or weaken this judicial institution, and its need to overcome the strong impression of operating on the basis of double standards. So far all efforts to use the ICC in response to crimes alleged against western countries have been rebuffed. A tiny opening is the recent indication that the ICC is formally investigating criminal charges relating to the abuse of Iraqi detainees by UK-occupying forces in the years after 2003. Perhaps, the times are changing, after all.
Richard Falk is Albert G Milbank Professor Emeritus of International Law at Princeton University and Research Fellow, Orfalea Center of Global Studies.He is also the United Nations Special Rapporteur on Palestinian human rights.