Why a Syria UNSC Referral to the ICC is not necessarily a good idea (and why we should be allowed to say that)

I’ve so far stayed away from the online discussions on the draft resolution for a UN Security Council Referral of the Syria situation. My impression was that any comment on the content of the draft was essentially science fiction, as there is little chance that the Resolution will pass, given that Russia is likely to veto it.

(on the substance, briefly, 1) I don’t share Kevin Jon Heller’s criticism of the UNSC not wanting to finance their referrals. The drafters of the Rome Statute wanted UNSC referrals, I think it was a bad idea, and possibly one that is contrary to international law, but they got it and cannot now complain, in my opinion and 2) in relation to possible limitations to the personal jurisdiction of the Court in the Resolution, I already expressed here, in relation to Libya, my thoughts that such limitation does not render the referral illegal, it merely raises a question of opposability in case someone falling within it were to be prosecuted)

However, given the last few days of online frenzy on the promotion of the referral in preparation for tomorrow’s vote, it is difficult to resist any longer. As summarized here, nearly 60 countries seem to support the referral as well as a high number of NGOs, who consider that a referral is the best way to bring justice to victims of the Syrian civil war. This is creating considerable peer pressure and States who do not publicly support this effort are considered to be necessarily “wrong”:

What’s wrong with Canada that it won’t join its many peers to co-sponsor resolution referring #Syria to #ICC? http://t.co/624vwAhh5R

— Kenneth Roth (@KenRoth) 21 Mai 2014

I am however not convinced by this quasi-unanimous call for the ICC to intervene in Syria, and this for several reasons.

1) From the perspective of the ICC

I don’t really see why the ICC would want to get involved in that situation. While a referral might be publicly welcomed by Court officials, I can only imagine the anxiety attacks that people at the institution, especially at the OTP, must be going through at the mere thought of the referral being approved. Investigating crimes in a serious manner in Syria right now would be a logistical nightmare, that probably would make Darfur look like a walk in the park.

Putting logistics aside, I’ve heard people say that this would be an opportunity for the ICC to get out of Africa. But I don’t see how this would be a good place to start, given the complex geopolitical considerations at play in the region. I think that dragging the ICC into this seriously polarized political conflict would ultimately (rightly or wrongly, but that is not the point) affect its credibility. I recently told a diplomat I met in the Hague that if his country really supports the ICC, it should oppose a referral of the Syria. I hope he did…

2) From a broader perspective: the ICC and conflict resolution

More generally, I naively remain amazed at how the ICC has now automatically become part of all conversations on any conflict situation. It is too big a discussion to go into here in too much detail, but the ICC has been integrated in all kinds of debates about transitional justice, jus post bellum and RP2. However, the link between international prosecutions and political transitions remains to be convincingly established in my opinion. Or at the very least, someone should justify on more solid ground than “we need to bring justice to victims” why such prosecutions can and should have such a central role in conflict and post-conflict situations.

This is particularly true in a case of ongoing crisis as in Syria. I don’t honestly see how a referral to the ICC will make any difference to the humanitarian crisis that has been unfolding for the past years. It looks like a veil for the inactivity of the international community in not doing anything to put an end to the atrocities. When someone is being beaten up in the street, you don’t send a judge, you send a policeman.

In relation to this,  supporters of the referral mention a possible deterrent effect. But this argument is always very shaky. Even if one buys the idea (disputed by many) that criminal law in general can have a deterrent effect, this will only be the case in a pacified society when criminal activity is the exception rather than the norm. This is hardly transposable to a conflict situation, where there is hardly any social contract remaining in which a pacified and socially accepted application of criminal law might have a deterrent effect.

In addition to that, I don’t see the evidence of such an effect to date. I must have missed the memo that shows that eastern Congo, the Central African Republic, Darfur or Uganda are now havens of peace thanks to ICC intervention…

This is not to say that accountability issues should not be part of the discussion at all. There is no denying that impunity no longer seems to be a credible policy option in any political transition. But there is a important chronological dimension that cannot be ignored. There is a right timing for implementing the different components of a transition, and, to make things more complicated, that timing is never the same in each case. But we do need to accept that not everything can be done immediately in dealing with a situation such as Syria. My feeling is that the most irrelevant action to take right now is a referral to the ICC. Other actions (military and/or diplomatic) would seem to be obvious priorities here. And I suspect that these considerations, rather than some vicious moral failure, lies at the heart of why virtuous states such as Sweden or Canada are not supporting the referral at this point in time.

Mark Kersten is, as usual, more careful and measured than I am in discussing this issue here, noting that we don’t know enough on the possible positive or negative effects of ICC intervention in various situations. This might be true to some extent, but I do think that the burden lies on those supporting the ICC to show that it does indeed have the promised positive effect.

In that respect, what ultimately continues to bother me is that supporters of the ICC have, in my opinion, oversold what this Court can do. As a result, the first thing you see in the press when some unrest occurs somewhere is a call for the ICC to intervene (see recently in Ukraine). This leads, in my view, to a dumbing down of discussions of complex situations, which need to be broken down into digestible “good vs bad” and “victim vs perpetrator” categories which simply do not reflect the reality of what is going on, nor help make policy choices and as a consequence prepare a manageable political transition. Indeed, not everything can be seen through the lens of international criminality when dealing with a political situation. If not, because both sides to a conflict are likely to commit crimes, does it mean that one supports no one? It’s like saying that because both sides in the second world war committed war crimes, that we cannot choose sides between them. Of course we can.

Some years ago, when the Ivory Coast post-electoral violence was unfolding, I asked the question of how to distribute responsibility among a myriad of possible entities. Ultimately, it raises the following question: if all those who committed crimes in civil wars are put in jail, who will be in charge of the transition? It might seem like a simplistic question, but I still have not received an adequate answer…