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Would an ICC referral have helped Syria?

- May 22, 2014

Vitaly Churkin (C), Russian Ambassador to the United Nations, votes against a resolution calling for the International Criminal Court to investigate alleged war crimes in Syria (Justin Lane/EPA)
Russian and Chinese vetoes this morning foreclosed the possibility that the United Nations Security Council would refer the situation in Syria to the International Criminal Court. This was not a surprise. Russia had announced earlier this week that it would veto the resolution. But although the likelihood of an ICC investigation was always slim, its mere possibility triggered another round of discussions about the Court’s role in ongoing conflicts worldwide.
The ICC was created to ensure that the architects of mass atrocity do not escape punishment. Over time, the Court became associated with other goals, in particular, prevention. Its first prosecutor, Luis Moreno-Ocampo, often emphasized this role, saying explicitly: “My mission is to end impunity for these crimes in order to contribute to the prevention of future crimes. So the goal is prevention here. That is the mission.”
How exactly prosecuting a handful of abusive leaders might reduce the rate of atrocity crimes is unclear. One frequently cited possibility is that trials will produce general deterrence; in this scenario, potential committers of mass atrocity, observing the convictions of others, will decide that war crimes don’t pay. In my 2013 International Journal of Transitional Justice article, I argue that this is not plausible; deterrence depends on the certainty and severity of punishment. ICC prosecutions are too infrequent and the punishments too mild to affect the decision calculus of perpetrators who use violence against civilians for tactical advantage.
But deterring possible war criminals is not the only way the ICC might positively affect situations of ongoing violence. Cheerleaders for the Court say that prosecutions can remove offenders from the field of combat and stigmatize those who might otherwise secure support for abusive behavior. Even if accused war criminals like Omar al-Bashir escape arrest, this argument goes, their marginalization, through travel restrictions and “naming and shaming,” is a verifiable effect of the issuance of ICC warrants. Skeptics question the operation of these mechanisms and suggest that exercises of international criminal justice can actually prolong violence. As Jack Snyder and Leslie Vinjamuri point out in “Trials and Errors”, prosecutions may foster perverse incentives to cling to power or avoid the negotiating table.
For the last decade, these “peace vs. justice” debates have played out in the context of ICC investigations and prosecutions in Africa. ICC advocates claim success in cases like Guinea and Côte d’Ivoire, where the opening of investigations alongside targeted sanctions and aggressive multilateral diplomacy appears to have helped head off additional violence. But the record is mixed elsewhere.
In 2004, when Ugandan President Yoweri Museveni referred the conflict with the LRA to the Court, optimists saw the chance for the ICC to engage constructively in a situation where terrible abuses were being perpetrated against a vulnerable civilian population. But questions emerged about whether warrants issued for senior LRA leaders impeded peace talks. By 2008, Ugandan government negotiators had changed their minds and requested that the charges be dropped, an impossibility under the ICC’s founding document, the Rome Statute. Museveni announced that he would never send the rebel leaders to The Hague. To date, no senior LRA leader has stood trial and the rebel group continues to commit atrocities across central Africa.
International justice advocates also celebrated last spring when Congolese warlord Bosco Ntaganda walked into the U.S. Embassy in Kigali and asked to be handed over to the ICC to face the charges against him. Ntaganda’s surrender suggested that justice could serve the interests of peace – or maybe not. Turning himself in likely saved Ntaganda from death at the hands of his enemies, and his most recent rebel movement, the M23, was already well on its way to defeat at the hands of the Congolese army and a new UN intervention brigade. If war criminals can use ICC warrants to escape the most severe potential consequences of their actions, then, as Jim Fearon has suggested, “the institution is potentially encouraging, not deterring, human rights abuses.”
What does any of this mean for Syria?
A Security Council referral would have asked the ICC to step into a long-running conflict in which egregious violations of the laws of war are committed daily. Although it would have been a first step towards accountability for these abuses, many worried that ICC involvement could have hindered negotiators’ ability to make “the compromises that make peace possible.”
But new scholarship on the Court raises the possibility that those engaged in the “peace vs. justice” debate may be asking the wrong questions. Michael Broache’s research suggests that violence on the ground can increase or decrease depending on both the context and the type of ICC engagement. Alana Tiemessen argues that most existing analyses of ICC impact ignore the critical prior question of the politicized process by which cases land at the Court. And, as Mark Kersten points out, in some contexts, ICC engagement “may actually have minimal or even inconsequential effects.”
In a situation like Syria where belligerents are locked in an existential fight, and incentives to commit atrocities are powerful, it’s very possible that the Court’s involvement would have had no effect on the conflict whatsoever.
Kate Cronin-Furman is a PhD candidate in political science at Columbia University.