[David Scheffer] Fanning flames of justice in Syria

CHICAGO ― Justice will be a long time coming in Syria, but it can begin with a Security Council referral of the situation in that wounded country to the International Criminal Court (ICC) for investigation and, ultimately, prosecution. The obstacles are serious, but the goal is imperative.

This week, United Nations High Commissioner for Human Rights Navi Pillay and French Foreign Minister Alain Juppe called for such a referral to the ICC during a session of the U.N. Human Rights Council that sharply attacked the Syrian regime for its deadly assaults on civilians in Homs and elsewhere in Syria. A report by U.N. legal experts found that crimes against humanity are being waged by Syrian forces against civilians under the leadership of Syrian President Bashar al-Assad. U.S. Secretary of State Hillary Clinton warned of the prospect of war-crimes charges against Assad. Tunisia, seeking to induce Assad to leave, offered him asylum.

The challenges erupting daily across Syria extend far beyond the criminal conduct of its leaders. The international community’s most important task is to force an end to the bombardments and killings, and to provide humanitarian relief to the country’s besieged civilian populations. If ever there was a case for preventing atrocities and activating the U.N.’s “responsibility to protect,” Syria provides it. But further political pressure, economic sanctions, and humanitarian action through a tough U.N. Security Council resolution still seem remote, given resistance by Russia and China ― both of which are permanent council members and closely allied to the Assad regime.

An initiative in New York to craft a Security Council resolution that only refers the Syrian situation to the International Criminal Court would not be enough to save many lives, but it might be a plausible first step at a time when few other options are available.

Because Syria is not a party to the ICC, the only way to give the tribunal jurisdiction is through the Security Council’s use of its enforcement authority to refer the situation of atrocity crimes in Syria, including crimes against humanity and war crimes, to the court. The Assad regime’s conduct would be investigated automatically, even without the consent of Damascus.

Last year, the Security Council unanimously voted to refer the Libyan situation to the ICC for investigation several weeks before it adopted a second resolution creating the NATO no-fly zone over Libya. Russia and China abstained from the vote on that resolution, and now angrily resent its adoption, because it resulted in regime change rather than just humanitarian protection of Libyan civilians. But the council’s earlier referral of Libya to the ICC was an entirely different initiative, and Russia and China supported it.

Impunity for atrocity crimes has been radically diminished during the last 20 years with the rise of international criminal tribunals for the Balkans, Rwanda, Sierra Leone, Cambodia, and the permanent court in The Hague. Such major political and military leaders as Slobodan Milosevic, Radovan Karadzic, Ratko Mladi, Charles Taylor, Jean Kambanda, Muammar el-Gadhafi, Omar al-Bashir, Jean-Pierre Bemba, and others have been indicted ― and many prosecuted ― during this period. While some tyrants will escape justice in coming years, Assad surely must appreciate that his own impunity is in doubt.

How should a Security Council referral of Syria to the ICC be framed in order to attract Russian and Chinese support (or at least abstention)? A “clean” referral like the one used last year to bring the Libyan situation before the court might not work this time. The Security Council has the power to tailor the referral and to limit to some extent the court’s jurisdiction to investigate and prosecute. Mollifying Russia and China might require providing some escape hatch, which Assad and regime officials could use before the full weight of the court’s jurisdiction comes thundering down on them.

If, for example, the Security Council gave Assad and his colleagues one week to quit power and leave the country for asylum in, say, Tunisia (or perhaps Russia), the council would explicitly omit their names from its referral of the Syrian situation to the court. Such officials would have to demonstrate indefinitely their complete withdrawal from political and military power in Syria in order to qualify for continued omission from the court’s jurisdiction.

Russia and China cannot be perpetually blind to the discrediting reality of supporting a regime bent on destroying sectors of its own population. Rebel leaders found responsible for atrocity crimes also would have to fall within the jurisdiction of the court to conduct fair and comprehensive investigations of all egregious criminal actions against civilians and even soldiers.

This may strike some as an abdication to impunity. But Russia and China must be given some incentive to turn the wheels of justice in Syria; a referral to the ICC framed in this way might serve that purpose, as well as help to achieve some humanitarian objectives. In the future, Syrian courts operating under new leadership could indict and seek the extradition of Assad and others to face judgment at home. 

By David Scheffer

David Scheffer, a professor of law at Northwestern University and former U.S. ambassador at large for war crimes issues, is the author of “All the Missing Souls: A Personal History of the War Crimes Tribunals.” ― Ed.

(Project Syndicate)