Not everyone thinks an intervention by the International Criminal Court would be conducive to peace. Professors Rianne Letschert and Marc Groenhuijsen of the International Victimology Institute at Tilburg Law School, argue that there is too little empirical evidence to suggest that the ICC should get involved in active and ongoing conflicts like the one ravaging Syria.
A group of international NGOs has been lobbying for a referral of the situation in Syria to the International Criminal Court (ICC) in The Hague. Such a referral is only possible through a UN Security Council resolution and would mean that the Prosecutor may start an investigation into possible committed crimes against humanity, war crimes or genocide by all parties to the conflict. So far, Russia and China have blocked any referral of Syria to the ICC. We have known for a long time that these countries support the regime of Assad and that the West supports the opposition. But is it right to criticize Russia and China for blocking a referral? And should the discussion not focus more on the possible effects of an intervention by the ICC in an ongoing conflict on those most affected? A look at recent history may guide such discussion.
During the Balkan war, the UN Security Council decided to establish the International Criminal Tribunal for the former Yugoslavia (1993) with the aim of bringing about peace and reconciliation in the region (the Tribunal was established under Chapter 7 of the UN Charter which deals with the promotion of peace and international security). But the aim of bringing about peace was an impossible goal, for which a criminal institution cannot be held responsible. Two years after the creation of the Tribunal, after all, the world witnessed the Srebrenica drama (1995) which killed more than 8000 people. And everyone will understand how difficult it was for the Tribunal to start criminal investigations in a country where the war was still ongoing.
Regarding the conflict in Libya, the Security Council adopted Resolution 1970, referring the case to the ICC (2011). The Council unanimously requested the ICC to investigate the violence of the Libyan regime of Colonel Muammar Gaddafi against the protesters. Investigations led the ICC to issue arrest warrants against Gaddafi, his son Saif al-Islam Gaddafi and Abdullah al-Senussi, the Chief of the security services. They were accused of crimes against humanity in the first twelve days of the Libyan uprising. We still know too little about the positive or negative effects of international arrest warrants on finding political solutions aiming to end massive violence. But the arrest warrant against Gaddafi could have been a complicating factor in the search for a political solution to the war that raged for three months. Some commentators argue that if Gaddafi had considered stepping down, it now became very unattractive by the prospect that he could end up in a cell in The Hague. On the other hand, as Richard Dicker of Human Rights Watch noted: “It beggars belief that a dictator who has gripped power for over forty years would be frozen in place by this arrest warrant.”
With regard to Gaddafi a move to a prison in The Hague became moot when he was eventually killed by his opponents in October 2011. A more recent ICC decision regarding Libya again caused fierce discussion in Libya and beyond. The ICC decided that the case against Gaddafi’s son was admissible because Libya would not be able to conduct the trial back home. According to the NGO ‘No Peace Without Justice’, there is a risk that this decision will ‘further deepen the ongoing crisis and to give another blow to the trust of the Libyans people in the capacity of their State to administer justice on crimes under international law committed on its territory by its citizens.’ We can only guess what the effects of the ICC intervention in 2011 and its more recent decisions have been on this fragile country that is still struggling with many transitional justice dilemmas. What we do know is that the situation in Libya is not getting any better. Just last week the United States called on all citizens to leave the country. And we also know that a proper assessment of victim’s perceptions on how ‘justice’ should be delivered is lacking.
As long as we do not know whether an ICC intervention can have a negative impact on a possible prospect for peace, we should be careful in calling for its intervention. With regard to concluded conflicts, it is more feasible to take a more proactive, albeit still modest, position. Here, research has revealed that the ICC can have positive effects on victims, of which acknowledgment of victimhood is the most important.
No one can fail to notice the symbolism in calling for judicial interventions. Often this is done on behalf of the many victims and their (justified) demand for justice. Reference is consistently made to the fight against a culture of impunity, especially within the human rights discourse. Also, the ICC is asked to intervene in order for the international community to be seen to be doing ‘something’. However, this symbolism might be risky if we do not know the effects of the Court on ongoing conflicts and that the chance of the Court saving people from violence is very small.
It would make more sense if the international community, including international NGOs, take first things first and target their efforts in this period of time to the actual termination of what is one of the most cruel and longest ongoing conflicts of the 21st century. From a human or victim perspective, calls for military interventions are being made. While we witness (although slowly) a more human-focused approach to international law and how it is applied, it remains difficult to envisage legal approval of such intervention in the near future. Also, the geo-political and wider security risks of such intervention in Syria must not be underestimated. For the many victims that suffer every day, let us hope that the prospect of peace comes soon. How, after ending the conflict, trials and punishment – and reparations for victims – should be handled, will pose the Syrian community for complex choices – choices they will need to make themselves, supported by the international community.