Time to Refer Syria to the International Criminal Court

19.03.2013

The stockpiles of chemical weapons in Syria may become increasingly dangerous should the West decide to arm the rebels. A timely referral of the situation in Syria to the International Criminal Court by a UN Security Council Chapter VII resolution seems the only reasonable precautionary measure against such a catastrophe.

The stockpiles of chemical weapons in Syria may become increasingly dangerous should the West decide to arm the rebels. A timely referral of the situation in Syria to the International Criminal Court by a UN Security Council Chapter VII resolution seems the only reasonable precautionary measure against such a catastrophe. With the crisis management diplomacy of the international community so far failing to produce any meaningful results, it would at least establish a criminal prosecution for those masterminding and executing the bloodbath.

Earlier in March, Foreign Minister Sergey Lavrov again confirmed Russia's vision of the future of regimes allegedly involved in crimes of atrocity. “We are not in the regime-change game”, said the Minister in an interview [ 1 ]. On the other side, to overcome the impasse in the UN Security Council, other big players are preparing for hands-on action. France and the UK decided to push the Europeans into lifting the arms embargo from Syria in favor of arming the opposition. It is worth noting that whereas France suggested discussing and reaching a ‘European’ decision on the matter (engaging Germany), David Cameron hinted that the UK could go ‘its own way’ if a consensus is not reached in Brussels. With the Americans close to providing ‘non-lethal’ assistance, as newly-appointed Secretary of State John Kerry recently unveiled in Turkey [ 2 ], the question comes to mind about whether these extensive measures are aimed at building peace and stability on the ground.

Earlier, both the United States and the UK showed willingness to supply the rebels[ 3 ] with “equipment that had not been sent before”, while neither ruled out supplying weapons directly to the rebels. With the weapons they have got so far, they captured UN peacekeepers in the Golan Heights[ 4 ]. Now some countries want to provide more sophisticated means to help their rebellion, which seems like a dangerous step. Whether the West has considered the scenario of those forces acquiring access to the large arsenals of chemical weapons remains to be seen.

The alternative policy – that of Russia and China – has been rather passive, leaving things to develop on their own but at the same time critical of those who are pro-active. In the most recent case, in response to British Prime Minister David Cameron’s readiness to amend the European embargo and supply arms to the Syrian opposition in order to change the balance of power on the ground, Russian Foreign Minister Sergey Lavrov said it would be ‘illegal’ under international law[ 5 ]. In general, Chinese-Russian resistance to calls for Assad to step down has been based on the ‘Westphalia sovereignty’ (most often quoted through UN Charter Art 2(4)) and ‘not another Libya’[ 6 ] objections. On the ground, at least so far it has been clear that arming rebels with weapons to continue their struggle will neither bring the Assad regime down nor make it bow to concessions.

Overall, international efforts regarding the situation in Syria are centered around two approaches towards finding a resolution. For some, including the radical elements in Syria, partially represented in the form of the Syrian National Council, ‘regime change’ is of primary concern and importance, almost as a precondition, allegedly aimed at qualitative changes in the domestic situation and national reconciliation as an aftermath.

Not so long ago, the ‘regime change first’ approach was tested in Libya, but the results we see today are troubling to say the least.

Admittedly, even though the Gaddafi regime was effectively removed after multilateral efforts in Libya under UN Security Council Resolution 1973 through enforcement of a non-fly zone and follow-up military action, the situation has not changed for the better since. The successor regime and the Islamist forces behind it even rejected cooperation with the ICC, which issued arrest warrants for prominent leaders of the Gaddafi regime (UN Security Council Resolution 1970 referred the situation to the Court under Chapter VII powers).

Furthermore, the radical organizations and Islamist networks that are flourishing in Libya are alleged to have killed the US Ambassador and three other diplomats on September 11, 2012. Regarding the likely decision to arm the rebels in Syria, it should be noted that the unrest in Mali, where France is still fighting, has been greatly bolstered by the inflow of weapons from Libya, also provided by the same Europeans and Americans.

Another approach to the Syrian crisis, supported by Russia, is ‘political dialogue first,’ which could make the transition period smoother and the results more sustainable. This was reflected in the Geneva Communiqué of June 2012[ 7 ]. In brief, this option suggests a multilateral dialogue involving all political forces in Syria, the formation of a transitional government and new elections, without making the future of Assad and his political allies a precondition. Interestingly, the incumbent regime has said it supports this approach, adding that it had formed a negotiation team to this end. On the other side, what the supporters of the opposition groups in Europe and the United States have failed to do so far – is to encourage their protégés to formulate a negotiation team, instead of supplying weapons which end up in the hands of the most radical elements. As long as those networks and separate groups are not encouraged to engage in institutionalized dialogue with the incumbent regime, but exactly the opposite – acquiring material and ‘lethal’ support to sustain the unrest – any viable resolution will remain a mirage. It is here that the international community should be reminded of the emerging R2P ( Responsibility to Protect ) Doctrine.

Even though the R2P Doctrine has not yet created any definite new rules or norms in international affairs or law (it may never do so), it nevertheless has become the ‘reference rule’ for well-established international humanitarian and human rights laws, resulting in the incorporation of the Doctrine by the UN Security Council in a number of relevant resolutions regarding intra-state violence and conflicts. The UN Security Council resolutions on Sudan, Somalia, Libya, Mali and Syria (since the adoption of UN Security Council Resolution 1674 in 2006) testify to the ‘primary responsibility’ of local governments regarding the deteriorating situation with intra-state conflicts, thus confirming Pillar 1 of the R2P Doctrine. The joint operations in Sudan, Somalia and Mali (for example Resolution 2085, paragraph 9d) in essence confirm Pillar 2 of the new concept, whereas intervention in Libya (2011) confirmed that Pillar 3 and the use of force in protecting civilians from mass crimes of atrocity or threats thereof shall become a new policy of the international community.

However, disagreements on the concept and its Pillar 3 are of paramount importance to the international community. Even though in all the relevant discussions, the UN Security Council member states did not disagree on the gravity of the situation in Libya and the role of the incumbent regime in committing crimes of atrocity, UN Security Council Resolution 1973 authorizedthe use of ‘all necessary means,’ yet refrained from citing R2P Pillar 3 motives of the impending operation. Jennifer Welsh observed that mentioning only “the responsibility of the Libyan authorities to protect the Libyan population” (R2P Pillar 1) without underlining at the same time the relevant responsibilities of the international community following the manifest failure of the incumbent regime “suggested that the latter notion was still contested by some members of the Security Council as an appropriate rationale for military action”[8]. The explanations concerning the vote and the abstention on Resolution 1973 by China and Russia are self-explanatory in this regard.

Many view the situation in Syria as similar to that in Libya. The full-scale war of the present regime in Syria against armed rebel forces is in breach of its international obligation to protect its own citizens when they target the civilians along with the insurgents. As many cases in the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC) illustrated, this practice amounts to crimes against humanity, which was documented in the UN Human Rights Council (UN HRC) reports on Syria and Libya. By failing to protect civilians, the Syrian government has failed to apply Pillar 2 of the R2P doctrine and never asked the international community either through the UN Security Council or directly through its allies to help in restoring law and order in the country. Meanwhile, for two years now it has been ‘unable or unwilling’ to protect its civilian population from the calamity, which has so far resulted in 70,000 deaths and millions of refugees. Therefore, as the gravity of the situation in Syria has evolved into crimes against humanity, all the warrants exist for the UN Security Council, at the very least, to refer the situation to the ICC following the UN HRC inquiry commission reports on crimes against humanity.

Given that other Chapter VII measures are likely to be vetoed, referring the situation to the ICC may become a legal avenue for putting an end to the crimes of atrocity. One thing is clear: the more weapons there are in Syria, the less likely a political breakthrough becomes, since neither side has shown any signs of reasonable thinking so far, whereas weapons in the hands of unpredictable and irresponsible people will prevail in the chaos.

The end game in Syria, or at least one of the options, could be the negotiation of power-sharing arrangements within the framework provided by the Geneva Communiqué, and a referral of the situation to the ICC by Chapter VII resolution of the UN Security Council. They may both even be mutually reinforcing, as the threat of criminal prosecution will be hanging like the sword of Damocles over those feeding the violence. The alternative is the bloodbath of an endless civil war, with or without Assad in power.

[1] http://www.bbc.co.uk/news/world-middle-east-21711573
[2] http://www.aljazeera.com/news/middleeast/2013/03/201335182832464199.html
[3] http://www.bbc.co.uk/news/world-middle-east-21621691
[4] http://www.bbc.co.uk/news/world-middle-east-21689547
[5] http://mid.ru/brp_4.nsf/0/F288A0C47C61A48E44257B2E001F2F07
[6] ‘Syria is not Libya’ – Lavrov; Russia Today, December 5, 2012. http://rt.com/politics/syria-russia-chemical-weapons-nato-lavrov-314/ (Last retrieved 01/03/2013)
[7] http://mid.ru/brp_4.nsf/0/F288A0C47C61A48E44257B2E001F2F07
[8] Jennifer Welsh, “Civilian Protection in Libya: Putting Coercion and Controversy Back into RtoP”. Ethics & International Affairs, 25 (2011), pp 255-262. doi:10.1017/S0892679411000207.

The author is a laureate of the Valdai Club Foundation Grant Program .

Views expressed are of individual Members and Contributors, rather than the Club's, unless explicitly stated otherwise.

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