Few issues in international criminal justice are as contentious as the relationship between the International Criminal Court (ICC) and regime change. After all, it goes right to the heart of the tensions between humanitarianism and the messy realities of conflict resolution as well as the contradictions between intervening in the internal politics of states in the name of human rights.
But there is a case to be made that ICC’s interventions have directly or indirectly contributed to the goal of regime change. This is particularly so where a regime can be equated with the autocratic rule of an individual leader. Consider some examples.
The explicit message of indicting Muammar Gaddafi was that he was no longer fit to be head of state. The regime change equation was pretty clear: the indictment signalled that Gaddafi should be arrested and brought to justice in The Hague. That meant removing him from power. Ipso facto, the ICC was seeking regime change.
The same goes for the ICC’s indictment of Sudanese President Omar al-Bashir for his alleged responsibility in perpetrating genocide, crimes against humanity and war crimes in Darfur. The arrest warrants signalled that the ICC – if not the international community – viewed Bashir as an illegitimate head of state who ought to be removed from power.
Today, as we debate whether or not the United Nations Security Council should refer the situation in Syria to the ICC, a central – if not the central – question is whether the Security Council is prepared to support the ouster of President Bashar al-Assad.
The ICC is not unique in this case. When the International Criminal Tribunal for Yugoslavia (ICTY) indicted Serbian President Slobodan Milosevic, it did so in the hope that he would be forced out of power. Unlike in the case of Sudan, it worked and Milosevic was sent to the ICTY.
It may be that the goal of regime change is inevitably linked to international criminal justice. The belief that tribunals can marginalize and isolate indicted leaders rests on the conviction that it is desirable to reduce the power of indictees to the point where they can no longer rule. Again, where the target is a head of state, this suggests one thing: regime change.
In short, where international criminal tribunals aim – or are aimed – at sitting heads of state, their implicit aim is to knock their target from power. Whether or not that happens, of course, depends on other factors, particularly whether there is sufficient will within the international community to enforce arrests warrants and/or seek regime change via military intervention. Sometimes it happens (see Gaddafi and Milosevic) and sometimes it doesn’t (see Bashir and Assad, so far). But regime change appears to be a pre-condition for the ICC to achieve its goal of ever seeing leaders like Gaddafi and Bashir in the dock.
The words “regime change”, however, remain taboo in some international justice circles. A common refrain is that the ICC does “justice, not politics”. And regime change, after all, is fundamentally political.
Louise Arbour, the former ICTY Prosecutor who is now President of the International Crisis Group, and who also happened to have issued that arrest against Milosevic, tackled this subject in a brief article last year, entitled ‘For justice and civilians, don’t rule out regime change‘. Arbour bravely and eloquently put forth the argument that we shouldn’t shun the goal of ousting regimes because “regime change” is a dirty phrase in the world of justice and international relations. It might be the difference between being able to protect civilians from atrocities and dithering in the face of mass human rights violations. Arbour asks a very poignant question:
“If a state launches a massive criminal enterprise against its people, why should ‘all necessary measures’ fall short of disabling those responsible, including by forcibly removing them from power?”
So why are we so afraid to utter “regime change” in the same breath as “international criminal justice”? The predominant reason, it would seem to me, is that it aligns the ICC with political prerogatives and thus sullies the belief in international criminal justice as being divorced from politics. Additionally, the cases where the ICC has targeted heads of state (Sudan and Libya) came in the wake of UN Security Council referrals. Proponents of the Court are understandably wary of too close an alignment between the ICC and the political machinations of the Council. Arbour suggests an additional reason:
“The only reason not to tie regime change explicitly to the protection of civilians or justice is that doing so would make an already elusive Security Council consensus in support of intervention completely unattainable.”
In other words, Russia and China, whose international diplomacy remains based, albeit selectively, on the principle of non-interference in the affairs of sovereign states, would never support an ICC intervention if it was explicitly linked to regime change. According to Arbour, the result, however, is simply that regime change is pursued “by stealth or deceit, as in Libya. Or not at all, as with the unenforced ICC indictments.” The question is: is pursuing regime change by stealth better or worse than doing it honestly and explicitly?
Of course, other problems remain. Regime change often ends not in a leader facing justice but in an escalation of violence and deaths. This is an obvious and legitimate concern in the case of Syria. Moreover, there are no guarantees that those who replace the targeted regime will be more peaceful than their predecessors. Both of these issues pose persistent dangers.
The relationship between the ICC and regime change is inevitably a murky one, leading to more questions than answers. Should international criminal justice be so hesitant to align itself explicitly with regime change? Are there some cases like Darfur, like Libya and like Syria where regime change is fully justified and is, or at least has become, a precondition to ending the conflict? The answers to these questions are unclear and perhaps uncomfortable. But with the potential for an ICC intervention into Syria, this is certainly a debate that needs to be had.