In a bombshell, must-read exclusive at Foreign Policy, Colum Lynch reports that the Obama administration has decided to throw its support behind a United Nations Security Council referral of Syria to the International Criminal Court (ICC).
There is an obvious danger in anyone getting their hopes up that this change in policy will result in a referral any time soon. What it does mean, however, is that a previously reluctant government has recognized that it is in its interests to publicly support an ICC intervention in Syria. This is a significant change in course for the Obama administration. And if nothing else, it creates more coherency in the US’s policy towards the Court which has suffered from being highly selective.
Here is a snippet from Lynch’s post:
Barack Obama’s administration has decided to back a push to have the International Criminal Court (ICC) open a formal, United Nations-sanctioned investigation into potential Syrian war crimes, embracing a strategy that it once dismissed as wholly inadequate in confronting mass atrocities in Syria, according to U.N.-based officials.
The United States this week gave the green light to France — which has championed the effort — to distribute the text of a draft Security Council resolution authorizing an ICC investigation into alleged Syrian atrocities to other members of the 15-nation council for more formal negotiations, according to diplomats familiar with the matter.
The United States indicated that it could support the text after seeking assurances that the ICC prosecutor, based in The Hague, would have no authority to investigate any possible war crimes by Israel, which has occupied the Golan Heights since the Six-Day War in 1967, according to those diplomats. The draft will be shared this week with the U.N.’s five veto-wielding powers, including China and Russia, before being distributed to all members of the 15-nation council as early as next week.
The idea of referring Syria to the ICC is nothing new. It has been debated since the very onset of the war (for recent takes, see here, here and here) and has been gaining steam in recent weeks. One of the key sticking points for the US in supporting a referral are its concerns that granting the ICC jurisdiction in Syria would result in the Court investigating Israel, which has long held control of the Golan Heights. According to Lynch, the US received assurances that it would not have the authority to investigate Israel (likely not from the ICC itself but from the drafter of a potential resolution). However, as Kevin Jon Heller suggests, the Court should not investigate Israel if it is Syria that is referred to the ICC. Moreover, as with both previous UN Security Council referrals (Darfur in 2005 and Libya in 2011), any Syria referral will almost certainly preclude the Court from investigating citizens of states that are not members of the ICC (except, of course, Syria itself).
Some will surely see the administration’s change in policy as nothing more than window dressing or, as Eugene Kontorovich calls it, “cheap talk”. Western states have benefitted from blaming Russia for being a barrier to justice and peace in Syria. That ability is now strengthened. The decision to support a referral will allow the US to put even more rhetorical pressure on Russia whilst claiming that it is (now) on the right side of history and justice.
Still, it remains to be seen how the administration itself responds to questions regarding precisely why it changed positions. Perhaps it has simply run out of other options. It is unclear what, if any, recent events on the ground would compel such a change. Further, the matter of the ICC not investigating Israel as a result of its control over the Golan Heights could have been resolved, literally, years ago. Perhaps a clue lies in the fact that, earlier this week, the administration gave a Syrian opposition delegation diplomatic status.
So what happens next? In all likelihood very little. While it certainly hasn’t helped much, the US hasn’t been the primary barrier to an ICC referral in Syria. That distinction goes to Russia (China is very unlikely to veto a referral alone). Will the US’ change in position shift Moscow’s thinking? Probably not.
At the same time and as I’ve suggested previously, there remain concerns over what an ICC intervention in Syria would actually look like. There are serious allegations – and mounting evidence – that both sides (the government of Bashar al-Assad and the Syrian opposition) have committed war crimes and crimes against humanity. As the ICC’s brief history shows, however, the Court tends to target only one side of the ongoing and active conflicts in which it intervenes (see here for reasoning). The effects of an asymmetrical judicial intervention in Syria at this point are unclear. More to the point, the problem with any UN Security Council referral is that there is no political consensus over which side the ICC should target. Until such a consensus is achieved, a referral remains unlikely if not impossible.
While we can debate the reasons, merits and wisdom of US support for a ICC referral in Syria, the Obama administration’s change in policy should not be dismissed as irrelevant. As David Kaye is quoted in Lynch’s piece, it may just be that “[o]nce the United States starts to get involved… it changes the conversation.” What remains to be seen is what, exactly, that conversation is.
When it comes to preventing international criminal justice in Syria, it has taken two to tango. Now Russia is pretty much alone on the dance floor.