Brothers in arms, and crimes? (Photo: http://www.presidentassad.net)
According to Borzou Daragahi of the LA Times, at least one unnamed Western government is funding a fact-finding operation in Syria in order to gather evidence which may eventually be used against Syrian President Bashar Assad in a case before the International Criminal Court.
When considering why Libya and not Syria was referred to the ICC, it is hard not to be stumped. There is no good answer. After all, if we are to believe what human rights groups say – that a crime against humanity is a crime against humanity, regardless of where it takes place – then surely the treatment of international crimes across contexts should be similar. Does the divergent treatment of the gravest of crimes, with only a chosen few subjected to international justice, not demonstrate the uncomfortable reality that some forms of suffering and violence are more important and worthy of attention than others? In the wake of indictments issued by the ICC against the Tripoli Three, even the Gaddafi regime appeared to have noticed this uneven application of justice.
There has been no shortage of speculation on the reasons for the divergent (some would simply describe it as hypocritical) international responses to the alleged atrocities being committed in Libya and Syria: the Western powers have spent their political capital on intervening in Libya; there is little support from regional organizations for an intervention in Libya; perhaps the ICC is experiencing “judicial overstretch” with its ever-expanding case-load; and the ICC simply doesn’t have enough money to investigate crimes, particularly in the wake of new investigations in Libya and Ivory Coast.
(Photo: © Sham News Network)
It is in this context of a general lack of international political will and a lack of funds that reports regarding a clandestine funding of a fact-finding mission in Syria have emerged:
“At least one Western government is bankrolling a project to gather evidence that could be used to indict Syria’s President Bashar Assad at an international tribunal over his crackdown on the country’s democracy movement, said a jurist leading the effort and a diplomat whose government is sponsoring it.
The fact-finding mission mostly involves assembling testimony from Syrian refugees that conforms to standards of international law necessary to sustain a war crimes trial at the International Criminal Court“
It remains unclear whether the ICC itself is receiving funds from the anonymous government(s) or whether this is a semi-independent fact-finding operation which may eventually provide the Court with evidence should Syria fall under its jurisdiction. However, the Jurist interpreted the report as signaling that an “unknown Western nation [is] funding ICC investigation of Syria.”
(Photo: AP / Nader Daoud)
Like Libya, Syria is not a member-state of the ICC. For the situation in Syria to fall under the Court’s jurisdiction, it would require a UN Security Council referral.
On the surface, a Western government-funded fact-finding mission for the ICC would appear to be a fundamentally good thing and, indeed, on some level it is: better an anonymous Western government fund such a project, behind the scenes, than no one at all; better someone, anyone, take action than no one.
But on another level, this underground funding of ICC operations is symptomatic of the uneven, highly-charged and precariously political ground on which international criminal justice is currently functioning. This is clear in at least two regards.
(Photo: AP)
First, the reality that accumulating evidence against alleged crimes perpetrated by Assad’s regime must be done anonymously is sharply symptomatic of the absence of political will and interest in openly investigating alleged acts which, by all accounts, are in need of investigation and international attention. Presumably the Western government funding the fact-finding operation is a supporter of the ICC. What does it say when a champion of the Court can’t support its operations openly? Additionally, there is an obvious cost to the transparency of such an investigation: How are things being investigated? Which facts are being gathered? Who is leading this mission?
Secondly, this development may cause rifts within the ICC. The potential funding crisis facing the Court affects the Court as a whole – all of its organs and everything from detention facilities and witness protection to defense costs and the OTP’s investigations. By earmarking funds or “donating” facts to the OTP, thus saving it the time and money to conduct its own investigation, the anonymous Western state, intentionally or not, makes the OTP the wealthy, comfortable organ of the Court while the others are forced to deal with funding shortages and shortfalls. This is neither good for internal political dynamics nor the achievement or delivery of justice itself.
That it is seemingly easy to intervene, militarily and judicially, in Libya but seemingly impossible to muster up any will in Syria is a sad, if not disturbing, reality. But clandestine, underground, anonymous funding of the Court by mysterious Western governments is surely not the ideal remedy.
Justice in Conflict 
Hey Mark, provocative post as always. But I want to push you on a few things: first, I’d be mightily surprised if this was direct funding of the OTP, and I’m not sure that if it’s simply a Western government sponsored fact-finding mission its fair to characterise it as ‘underground funding’. There is also past practice in this regard: I know the ICTY recieved help from Western countries, or NGOs funded by Western governments, in collecting evidence and testimony, particularly from refugees and asylum seekers, and that similar initiatives existed with respect to Sudan. Would you characterise an NGO collecting evidence to submit to the ICC as funding the Court? Or to use your words, as engaging in the “clandestine, underground, anonymous funding of the Court”? I’m also a bit sceptical about the more general idea that we should expect or require transparency throughout the evidence collection process. There seem to be plenty of good operational reasons for some things to be kept behind closed doors, at least at the investigative stage. This is both from the Court’s perspective (witness protection, staff security) and from states’ perspective (diplomacy, peace negotiations, secret intelligence). The issues change once things move to the courtroom, or once there’s an arrest warrant, but I think in the run up to that point the OTP can legitimately claim more leeway in terms of the standards of trransparency and openness requireed.
The political nature of international criminal justice, as you highlighted in a previous post, is its Achilles’ heel. The movement away from substantive justice to strict legality, in Cassese’s words, will eventually cause untrammeled suffering to people caught in these conflict ridden areas. Syria’s referral to the ICC must by the UNSC must be mustered soon. However, it is but one aspect of bringing justice to Syrian civilians.
The clandestine funding only undermines the strict principles of openness in criminal justice systems. It shouldn’t be any different with the ICC. I’m afraid if any of the evidence, gathered by means such as this and without legal sanction, would even be admissible.
Thanks for the comments Andrew and Dharmendra!
@Andrew – thanks for this really interesting/challenging comment. With regards to the practice of states giving money to tribunals for particularly, I don’t think that’s overly problematic, although probably not ideal in the long-term. Canada gave the ICC $500,000 following the UNSC referral of Darfur to the Court (which, like the Libya referral said the UNSC wouldn’t pay a cent for the Court’s work). This again points to the increasingly apparent reality that the Court is often in an impossible position of having cases referred to it but not being able to meet the demand because of funds. I also agree that there would be an important difference if the Court is being “paid” by the anonymous government or whether it is simply being provided with evidence. What piqued my interest was that this is being done so confidentially/covertly. When NGO, national or UN-backed fact-finding missions seek evidence of crimes, they do so with public knowledge of their work. As you suggest, some of the details of their work should remain secret until they are presented during a trial but that these groups/individuals are fact-finding becomes public. In Libya, the UN fact-finding mission led by Philippe Kirsh was widely publicized, and some of its findings also became public, especially its suggestion that the rebels may have committed war crimes. Perhaps it’s unfair to characterize such funding as “clandestine” or “underground” but the veil of secrecy over this particular case seems, at least to me, to be unprecedented.
@Dharmendra – I think that it would still be admissible. As Andrew points out, there generally isn’t any problem (and often good reason) to gather evidence that is not made public until an actual trial takes place. What is odd, for lack of a better word, in this case, is that the fact-finding operation itself is being funded and conducted without knowledge of who is funding and conducting it.
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Nice piece Mark, though I disagree on some points. The weakness of the ICC is not the lack of political support at the moment, but rather the way in which the international community uses the court. The ICC works best after conflicts are over; the use of the court during a conflict only hardens the resolve of the criminal leader. This is precisely what happened in Libya and perhaps the world has learned a lesson there. Without any way to really pressure Assad, it is possible that a negotiated exile for Assad is the best option left. Use of the ICC adds an obstacle to this option.
In this light the inability to muster support for judicial intervention (use of the ICC, etc) is not sad nor disturbing, but rather a calculated look at the realities on the ground. I have a ful response here:
http://notesfromamedinah.com/2011/08/12/accountability-or-peace-the-icc-in-syria/
I don’t think its necessarily a problem that a ‘clandestine’ source is funding the investigation: in some senses, its simply a form of foreign aid, if we do assume that such investigation is welfare-enhancing for the Syrian people regardless of the trade-offs it may have in terms of transparency. In domestic trials in the U.S. we often see litigation financing where third parties fund ‘good’ cases and keep a commission from the damages awarded.
Of course, in this case, there is no such apparent pecuniary benefit for a donor and one has to be more skeptical: I am doubtfil that there is anything less than self-interest driving such charity: Perhaps the donor wishes to capitalize on a post-Assad government’s goodwill or it is simply a proxy for another Middle Eastern state such as Saudi Arabia which would do well to see an Alawi Shiite removed as head of state but does not want itself named. Perhaps the Western government has a strategic interest i.e. in curtailing Iranian influence in Syria or by identifying itself it risks undermining the efficacy of its funding, for e.g. by inviting allegations that it is simply acting on Israel’s (anti-Iran motives) behalf. Who knows.
Thanks Chris and Dawood for these provoking and interesting comments.
@Chris – I read your comment and post with great interest – thanks very much for sharing! I have three general criticisms of the argument: first, it’s not obvious that ICC interventions in ongoing conflicts have negative affects. This is an assumption you make rather than a fact that holds or is understood to hold across contexts. It may be a good assumption to make in certain instances, but it remains just that: an assumption. Second, I think you make an artificial separation between lack of political will and utilizing the court. I have previously argued that the international community has “outsourced” responsibility for peace to the ICC in Darfur and now Libya (https://justiceinconflict.org/2011/02/28/did-the-un-security-council-just-outsource-peace-in-libya-to-the-icc/). What allows this utilization of the Court, in my view, is precisely the fact that the ICC is weakened by a lack of international political will. A strong Court with strong backing allowing it to be independent, surely couldn’t be “used” as it is now. In sum, being “used” and lack of political will are two components of the same problem. Lastly, I think your argument is problematic because we have not seen real international engagement on Syria regarding “regime change” or even a transitional government. My understanding is that no one is close to beginning the process of negotiating peace in Syria. If that is, indeed, the case, than surely the ICC’s involvement can’t be an obstacle to, for example, offering Assad exile. Regardless, I enjoyed your provocative and thoughtful commentary!
@Dawood – such funding of the Court may not be an overall problem in the pursuit of international justice (something Andrew also argues above), but I continue to believe it’s symptomatic of real problems regarding the politics of the ICC. Further, the divisions such funding could cause within the ICC are real. I can say that I didn’t get that idea from no where!